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The claimants had commenced this action vide a complaint dated and filed on 13th August 2012 praying for the following reliefs – 1. The sum of N9,441,600 (Nine Million, Four Hundred and forty-One Thousand, Six Hundred Naira) only being arrears of emoluments. 2. N5 Million (Five Million Naira) only as damages for wrongful termination. 3. A declaration that the libelous and defamatory remarks made against the reputation and integrity of the claimant are wrong and that the claimant deserves a written apology. 4. Cost of this action. Accompanying the complaint are the statement of claim, list of witness, witness deposition on oath, list of documents and copies of the documents. In reaction, the defendants filed their memorandum of appearance, statement of defence and counterclaim, list of witness, written statement on oath of the witness, list of documents and copies of the documents. In response, the claimant filed a claimant/counter defendant’s statement of defence, another list of witness, claimant/counter defendant’s witness deposition on oath, claimant’s/counter defendant’s written address, list of documents and a copy of the single document so listed. By leave of Court granted on 6th March 2013, the claimant was permitted to amend his list of witnesses by adding a second witness and also filing an additional witness statement on oath. The defendant accordingly amended its statement of defence and counterclaim and thereby brought in additional witness statement on oath, additional/further list of documents and copies of the additional documents. By the defendant’s counterclaim, the defendants are claiming against the claimant the following reliefs – (a) An order that the defendant to the counterclaim pays the sum of N640,218.00 being the sum fraudulently transferred from Mr. Emmanuel Akwataghibe Madueke account which the 1st counterclaimant paid. (b) An order that the defendant to the counterclaim pays the sum of N430,000.00 being the sum fraudulently transferred from Mr. Anene Nwankwo account which the 1st counterclaimant also paid. (c) An order mandating the defendant to the counterclaim to pay the sum of N157,000 being the accrued interest of the sum of N430,000 paid to Mr. Anene Nwankwo by order of Securities & Exchange Commission. (d) Interest at 21% on the judgment sum, until judgment is given and thereafter at 10% until the judgment sum is fulfilled. (e) Cost of the action assessed at N500,000.00. At the trial, the claimant called two witnesses: the claimant testified on his own behalf as CW1, while Mrs. Rebecca Ipinko, a business woman, who was once the Head of Marketing Department in the 1st defendant company, also testified for the claimant as CW2. For the defendants, David Yabrifa, a Stockbroker working with the 1st defendant, testified for the defendants as DW. At the conclusion of trial, parties were asked to file and serve their respective written addresses. The defendants’ written address is dated 26th February 2014 but filed on 27th February 2014, while that of the claimant is dated and filed on 18th March 2014. The defendants did not file any reply on points of law. The case of the claimant, according to him, is for payment of arrears of salaries, refund of unremitted pension deductions and damages arising from wrongful dismissal, and payment of interest on the sums outstanding at the prevailing market rate from the date judgment is given and at 15% until payment is effected. The claimant is an employee of the 1st defendant, a stock-broking and investment company. He was amongst the four pioneer staff who were seconded from City Code Trust & Investment Co. Ltd (hereinafter referred to as City Code) to form what is now known as Shalom Investment & Financial Services Limited. The letter of secondment is dated 17th September 2001. The claimant continued that owing to the global crash in stock markets around 2008, the defendants placed all employees on half-salary with a promise that staff will be compensated when things improve. That on 19th November 2010, the 1st defendant issued a letter to the claimant indefinitely suspending him from “active duty” without pay on the allegation of “fraud”. The letter of suspension neither specified any issue nor gave the claimant opportunity to defend himself against the alleged “fraud”. The claimant went on that on 8th February 2012 he was invited to the office in order to help in addressing certain issues. During his visit to the office he was prevailed upon and begged to come and assist in reconciling some sticky records and balancing of various accounts, etc. without addressing the alleged fraud or giving him the opportunity to defend himself. That he naturally refused to be coerced to work under disguised threat and so declined to assist. That another letter was addressed to him on 13th February 2012 demanding answers to certain accounts. When he discovered that he was merely being asked to provide technical support to the defendants that had laid off all its competent hands, had many outstanding operational issues, and consequently could not deliver its obligations to many clients, his law firm was directed to kick against the ploy of the defendants to re-employ him through the back door without addressing the burning issue of indefinite suspension without pay. On receipt of the claimant’s solicitor’s letter the defendants reacted with another letter dated 22nd February 2012. A letter finally dismissing the plaintiff was dated 20th March 2012. To the claimant, in order to survive with his family, as a result of unemployment, he approached the National Pension Commission in order to claim pension deducted from his salary by the defendants. That to the consternation and chagrin of every right thinking person, it was discovered that the defendants have not remitted moneys deducted from staff salaries to PENCOM. In reaction, the defendants denied the allegations of the claimant. The kernel of the defendant’s defence is as follows – (a) That the claimant was seconded to the 1st defendant as an Accountant by City Code Trust & Investment Co Limited. (b) That at the point of secondment, his salary was N25,000.00 and later raised to N161,460.00, but that due to economic downturn, the salary was reduced to N80,730.00 by the Board of Directors of the 1st defendant in March 2009. (c) That during the claimant’s tenure as the Accountant of the 1st defendant, he was not diligent in his duty as an accountant because the 1st defendant was suspended from trading on the floor of Stock Exchange due to the fact that he could not put the company’s account in order and was instructed on several occasion to reconcile the defendant account but he could not do that and that the defendant had to employ an external auditor by name, Ken Ohore & Co. to handle the 1st defendant’s account. (d) That the firm mentioned above reconciled the 1st defendant’s account in 2008 and discovered a lot of discrepancies in the company’s account and some of them are as follows – i. A discovery of the sum of N10,000,000 which was issued for renewal of the defendants’ license in 2007. The license was eventually not collected due to the fact that the audited account of the company was not prepared by the claimant. ii. In 2008, the 1st defendant provided the sum of N52,177,500.00 for purchase of 37,000,000 unit of Investment & Allied Assurance Plc shares but only 15,967,199 units were purchased at N1.40k per unit and the claimant could not account for the remaining N29,823,421.40. iii. A cheque of N22,000,000.00 signed by the claimant as the Accountant of the 1st defendant for the purchase of Sterling Assurance shares could not be accounted for by the claimant. He did not make any copy of the cheque issued out by him neither was the full detail of the cheque written out in cheque stub. (e) That pursuant to the above finding and the claimant’s inability to explain the inconsistencies, the 1st defendant Management wanted to send him out of their establishment but was magnanimous to retain him as an Internal Auditor, while Mr. Victor Iban was employed as new Accountant. (f) On resumption of the new Accountant, the claimant did not hand over until the timely intervention of the Chairman, and that gave rise to much suspicion. (g) That when the new Accountant took over, he discovered more inconsistencies in the company’s account and the Accountant could not give answer to them. (h) That new Accountant found out that the claimant used his position as the company’s Accountant to fraudulently transfer funds from clients’ accounts to his personal accounts; as well as some other accounts where one of the 1st defendant’s staff has an interest without the client’s knowledge, consent, permission or authorization thereby defrauding the 1st defendant. (i) That some of these fraudulent acts were on account of one Mr. Emmanuel Akwataghibe Madueke who complained of unauthorized withdrawal of N640,218.00 from his account on 16/7/2008 and that of Mr. Anene Nwankwo who also wrote to the 1st defendant complaining of unauthorized withdrawal of N430,000 from his account. (j) That after investigation by the 1st defendant, the claimant and Mrs. Ipinko Oluwasanmi Rebecca were given queries to explain the reason for such transferred to their personal accounts and that neither of the two could produce any evidence of authorization for the transfer. (k) That the claimant and Mrs. Ipinko Oluwasanmi Rebecca were given an indefinite suspension without pay to enable the management further investigate the company’s account. (l) That it was while the two staff mentioned above were on suspension that Mr. Anene Nwankwo wrote the letter complaining of unauthorized withdrawal in his account. (m) That the claimant was invited to answer questions in respect of his suspension, but on arrival he insisted that he would need three days and another letter stating what the defendant wanted. (n) That another letter dated 13th February 2012 was sent to the claimant but he instructed his solicitor to write to the 1st defendant. (o) That the company constituted a disciplinary team and invited the claimant through a letter dated March 20, 2012 and that the claimant could not explain or produce any letter of authority or consent to transfer client’s monies to other accounts including his personal account. (p) That the claimant was dismissed on the allegation of fraud. (q) The defendants denied ever begging the claimant to assist in reconciling any sticky records, that he was invited to answer questions relating to the accounts he handled and the accounts was stated in the letter inviting him. (r) That all the monies which the claimant and Mrs. Ipinko Oluwasanmi Rebecca fraudulently transferred from the clients’ account were paid back to the clients by the 1st defendant. That the 1st defendant also paid accrued interest. (s) That the claimant had collected his salaries for the months he worked in the company and is not entitled to any emoluments, damages or cost of this action. The defendants then framed two issues for the determination of the Court, namely – a) Whether the claimant’s dismissal from the defendant’s employment for fraud is unlawful as to entitle the claimant to the claims in his statement of fact. b) Whether the defendants are entitled to their counterclaim. Regarding issue a), the defendants asserted that there is no doubt that the 1st defendant issued a letter indefinitely suspending the claimant from active duty without pay on the allegation of fraud, as it is clearly shown in paragraph 5 of the statement of fact. That there is also no doubt that the claimant was given a query to show who gave him authority to transfer the sum of N640,2 18.00 from Mr. Akwataghibe Emmanuel Madueke’s account to Williams Global Trading account (an account which Mrs. Ipinko Rebecca had an interest). Exhibit H is the claimant’s reply to the query stating that the authority to carry out the transfer was not given by the client (Mr. Akwataghibe Emmanuel Madueke but by account officer, Mrs. Ipinko Rebecca). The defendants continued that the claimant’s letter of suspension dated 19th November 2010 (Exhibit M) clearly states that the transaction of the claimant opened up an investigation on fraud which the claimant was involved. That the claimant also admitted during cross-examination that he was aware that Mr. Akwataghibe Emmanuel Madueke wrote a petition complaining of illegal transfer of money from his account with the 1st defendant’s account. That it is important to note that the said Mrs. Ipinko Rebecca had some other account in the 1st defendant company bearing her name, but decided to carry out this fraud through a company which was not known by the 1st defendant that she is a director. That this was clearly shown during the cross-examination of CW2 where she said “I have other account with 1st defendant in my name”. To the defendants, a good look at Exhibit K (Williams Global Trading Co. Ltd account) showed as follows: On 16/07/2008, N640,218.00 being balance payment for INVESTMENT & ALLIED share was transferred from AKWATAGHIBE EMMANUEL MADUKE account to WILLIAMS GLOBAL TRADING CO. LTD. On 21/07/2008 N430,000 being balance payment for Investment & Allied shares was also transferred from Anene Nwankwo Account to Williams Global Trading Co. Ltd. On 31/07/2008, the sum of N50,000 was transferred to Etoh Charles account (the claimant) from Williams Global account. That all these illegal transfers were done within a month and as at the time of the transfers, the 1st defendant management was not aware that Mrs. Rebecca Ipinko had an interest with Williams Global Trading Co. Ltd until the 1st defendant’s investigation which led to the conduct of corporate search at Corporate Affairs Commission in respect of WILLIAMS GLOBAL TRADING CO. Ltd, referring to Exhibit J. The defendants went on that the law is that suspension of a servant or an employee when necessary cannot amount to a breach of the servant or employee’s fundamental or common law right, referring to Bernard Ojeifo Longe v. First bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1 where the Supreme Court held that – Suspension is usually a prelude to dismissal from an employment, it is a state of affair which exists while there is a contract in force between the employer and employee, but there is neither work being done in pursuance of it nor remunerations being paid. That the claimant alleged that he was invited to the office of the 1st defendant to help in addressing certain issues and that on his visit he was prevailed and begged to come and assist in reconciling some sticky records. To the defendants, this assertion cannot be true as the letter of suspension (Exhibit M) stated clearly that the claimant can be contacted by the office during the period of suspension. Exhibit R are letters dated 8th February 2012 and 13th February 2013 respectively referring to the claimant’s suspension and “sough ting” (sic, sorting?) of accounts handled by him while in active work. Exhibit T is a letter to the claimant’s solicitor dated 20th March 2012 stating that in the course of investigation concerning the suspension of the claimant, more issues came up against him and the need to invite him to the office to give information concerning these issues. That it is important to note that the claimant only answered his invitation once and refused to answer his invitation on other occasions. To the defendants, paragraph 5 of the claimant’s witness statement on oath clearly stated that in 2009, some private placement involving certain clients of the 1st defendant were handled by him (Etoh Charles) as part of his normal schedule of duties. The defendants then submitted that the defendants gave the claimant ample opportunity to defend himself before and after his suspension and, therefore, the suspension was effective and lawful. On the alleged unlawful dismissal, it is the claimant’s claim that he was unlawfully dismissed from the service of the 1st defendant stating amongst others that he was not presented with any facts or specific allegations of fraud or wrongdoing against him and that he was not given opportunity to defend himself, referring to paragraph 7 of the statement of claim and paragraph 22 of the claimant/counter-defendant’s statement of defence. In addressing this issue, that it is imperative to first and foremost dispense with non-issues as revealed in the pleadings of the parties. Thus, it is not disputed that the claimant and Mrs. Ipinko Oluwasanmi Rebecca were given queries, which detailed allegation of fraud for unlawfully transfer of money to Williams Global Trading Company Limited account, referring to Exhibit L. It is not also in issue that the claimant and Mrs. Ipinko answered the said query. Also it was not in issue that the claimant was given a letter of suspension from active duty which is clearly stated in its 2nd and 3rd paragraphs that the 1st defendant was not satisfied with his answer to the query dated 29/3/10 and that if after the investigation he is not found guilty, he will be reinstated but if found guilty, his appointment with the 1st defendant will be terminated. The last paragraph further stated that the claimant will be contacted by the 1st defendant. It is also not in issue that the claimant was invited to the office of 1st defendant on various occasions, referring to paragraphs 6, 8 and 11 of the statement of claim. That where there is no dispute between parties in their pleadings, or where by their pleadings the parties had agreed on certain facts, there is no issue between the parties on such facts, and therefore needles to call evidence thereon, citing Ita v. Dadzie [2000] 4 NWLR (Pt. 652) 168 at 178 – 188 H – A. To the defendants, it is the claimant’s case that he was not presented with any fact or specific allegation of fraud or wrong doing against the 1st defendant, referring to paragraph 12 of the statement of claim, and that the defendants could not confront the claimant to defend himself either in writing or orally, referring to paragraph 19 of claimant/counter-defendant’s statement of defence. That the pertinent issue, therefore, is whether or not the claimant was unlawfully dismissed from the services of the 1st defendant and whether the claimant was denied a fair hearing and fair trial before such dismissal. Paragraph 24 of the amended statement of defence and Exhibit L (Query and answer to the said query dated 29th March 2010) clearly showed that the claimant was asked to explain the reason for the unlawful transfer of monies and who authorized the said transfer. Exhibit M is the letter of suspension which clearly showed that the defendant was not satisfied with the claimant’s answer to the said query. That it is pertinent to note that Exhibit M (the letter of suspension) informed the claimant that he will be contacted during the suspension. It is also important to note that it was after the suspension of claimant that the issue of illegal transfer in Mr. Anene Nwankwo’s account came up. That it is not in dispute that the claimant was invited to the office of the defendant to answer some questions in respect of accounts he handled while in active service but was advised by his solicitor not to attend except the defendant lift up the suspension. That the Supreme Court held in Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) 624 that – Where an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query and the employee answers the query before the employer takes a decision on the employment of the employee that satisfied the requirements of fair hearing because he answered the respondent’s query before he was dismissed from his employment. In the same case, Onnoghen, JSC held at page 641 E – F that – Appellant was given the opportunity of defending himself against the allegation leveled against him and he utilized same. He was therefore given fair hearing. So I hold the considered view that his dismissal in the circumstance cannot be set aside simply because he was not subject to criminal prosecution prior to the dismissal. To the defendants, further to the above, that the claimant alleged that it was management decision to the effect that any price above the benchmark of N1.50 should be credited or paid to the staff or marketer who procures the contract. During cross-examination of the CW1, he stated that the sums of N640,218.00 and N430,000.00 respectively transferred to Williams Global Account were commissions accruing to the marketer (Mrs. Ipinko Rebecca). CW1 further stated during cross-examination that Mrs. Ipinko Rebecca bought Mr. Emmanuel Akwataghibe’s shares in question for 84k. CW2 on her part stated that she bought the shares for Mr. Akwataghibe Emmanuel for 84k and that Akwataghibe Emmanuel paid her 20k as commission for each shares and that she later collected the remaining 66k for each share. In other words, CW1 transferred the sum of N640,218.00 into Williams Global Co Limited account, which represents balance of money after purchase of the shares for 84k. The question now is: does the N640,218.00 which CW1 transferred above the benchmark of N1.50 which they alleged was the management decision? That the answer is definitely in the negative. Only the 20k paid to CW2 by the customer himself is above the benchmark of N1.50k. That CW2 alleged that the sum of N640,218 transferred from Akwataghibe’s account to Williams Global Co. Ltd account was the difference after the purchase of the stock for Mr. Akwataghibe and the money transferred was based on the agreement between her and the Managing Director. The defendants then referred to Chris Ehikogu Eigbe v. Nigerian Union of Teachers [2008] 5 NWLR (Pt. 1081) 621 G – H, where it was held that – An officer who acted in obedience to an instruction that is patently unlawful, a defence that he acted in obedience to his superior will not avail him. The defendants submitted that since the CW2 has collected 20k from the customer, she knew that the sum of N640, 218 belongs to the customer but decided to connive with the CW1 to transfer the said sum to an account not known by the 1st defendant management. Her defence that the transfer was as agreed with the Managing Director of the 1st defendant cannot avail her as she knew that the act is not lawful and that was why she did not carry out the transaction through an account known by the Management. That in Eigbe v. NUT (supra) 623 – 624 D – E, the Court of Appeal was unequivocal in holding that – It is now settled that in statutory employment, as well as in private employment, the employer can dismiss an employee where the accusation is of gross misconduct involving dishonesty bordering on (sic) criminality and in such cases it is not necessary nor is it required that the employee must be tried in a law Court. It is the submission of the defendants, therefore, that they competent to indict the claimant in-house for fraud and to dismiss him as done in the instant case. The claimant had prayed for the award of damages of N5,000,000.00, for wrongful termination of appointment. To the defendants, it is settled law that general damages are awarded on the basis of the direct, natural or the probable consequence of the acts complained of and the burden of proof of same lies on the complainant to prove that he is entitled to them, referring to Dauda v. Lagos Building Investment Company Limited [2011] 5 NWLR (Pt. 1241) 411 at 429 F – G. That in the absence of cogent, verifiable and compellable material evidence being produced in support of a claim, no damages can be awarded to a failing claimant as the Court is not a Father Christmas, citing Okoko v. Dakolo [2006] 14 NWLR (Pt. 1000) 61 SC at 434 C – D. In the instant case, that the claimant seeking for the award of general damages has a duty to place before this Court, evidence not only in proof of the case but also in proof of his entitlement to such damages. Unfortunately, the claimant failed to discharge the onus. The defendants then submitted that the award of general damages would fail where the claim itself fails or the wrong alleged was not established by evidence, citing Smithkline Beecham Ltd v. Farmex Ltd [2010] 1 NWLR (Pt. 1175) 285 at 306 B – D. Furthermore, that the Courts are even stricter in awarding special damages as they are not awarded by the Court as of course. To be entitled at all, special damages must not only be pleaded with particularly, it must equally be proved with precision, citing I.H.A.B.U.H.M.B v. Anyip [2011] 12 NWLR (Pt. 1260) 1 at 21 A – C, Ajagbe v. Idowu [2011] 17 NWLR (Pt. 1276) 422 at 446C, and Tanko v. Mai-Waka [2010] NWLR (Pt. 1176) 468 at 491D. In the instant case, that the claimant seeking for the award of either general or special damage is not entitled to any of the reliefs sought as there was no scintilla of evidence produced to merit such an award. The defendants, assuming without conceding that the claimant has a good case and consequently entitled to award of damages in his favour, the claimant would have been entitled in any case to only salary in lieu of notice of termination, if any. That this has been sustained by the Courts in a regime of cases over the years, referring to Shena Security Company Limited v. Afropak Nigeria Limited [2008] 18 NWLR (Pt. 1118) 77 at 108 – 109 H – C and Chukwumah v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 512 at 534 C – E. From the totally of evidence the defendants then submitted that the claimant is not entitled to the award of either general or special damages. The claimant also prayed for a declaration that the libelous and defamatory remarks made against his reputation and integrity are wrong and that he deserves a written apology. To the defendants, it is settled law that this Court is a court with limited jurisdiction and does not treat/entertain libelous and defamatory issues, referring to Idemudia v. LASU [2010] 21 NWLR (Pt. 60) 562 particularly 581 D – E (wrong citation given). The defendants then submitted that following the decision of the Court and the law establishing this Court, the claimant’s relief as to declaration in respect of any libelous and defamatory remarks must fail as this Court lacks jurisdiction to entertain such claim. The defendants went on to ask whether the claimant is entitled to items listed in the schedule of outstanding emoluments, and answered in the negative as no evidence was led or adduced to show how he is so entitled. That the position of the law is that he who asserts must prove and failure to do this with any evidence, the Court is duty bound to refuse to grant any of those items. That worthy of note is the pension claimed by the claimant. The Pension Reform Act 2004 stipulates that both employee and employer must make remittance or contribution to the pension manager chosen by the employee. It follows that the pension due from the employer has been remitted to the claimant’s chosen pension manager The defendants then submitted that the claimant’s pension due to him has been remitted to his chosen pension managers and cannot receive pension for the period on suspension. Issue b) is whether the defendants are entitled to their counterclaim. It is the defendants’ submission that they are so entitled. That it is trite that a counterclaim is a distinct action from the main claim and since it is a distinct action, same can be sustained upon credible evidence. That the defendants have established by credible evidence to be entitled to the counterclaim. To the defendants, Exhibits (f) to (q) have combined effect of evidencing the unauthorized transfer of the various sums in the custody of the 1st defendant by the claimant thereby causing the 1st defendant huge loss. That the defendants paid back the said amount as indicated in the cheque to Mr. Emmanuel Akwataghibe Madueke and acknowledged copy of the said cheque all dated 2nd December 2012. Exhibit (p) is Securities and Exchange Commission letter to the 1st defendant confirming that the sum of N430, 000.00 has been paid back to Mr. Anene Nwankwo by the 1st defendant. That all of this showed debts of the claimant to the defendant and there is no evidence on the part of the claimant showing or contradicting the position of the defendant. The defendants then submitted that since the claimant has not adduced any evidence contradicting his indebtedness to the defendant, the Court is duty-bound to accept the defendant’s evidence as proof of the claimant’s indebtedness. In conclusion, the defendants, in the light of the issues raised and arguments canvassed above, urged the Court to dismiss the suit in its entirety with substantial cost awarded against the claimant and enter judgment for the defendants as claimed in their counterclaim. In reaction, the claimant framed 10 issues for the determination of the Court, namely – 1. Whether the defendants are justified in placing the claimant under indefinite suspension without pay. 2. Whether it is in order to allege fraud against the plaintiff without providing evidence of the fraud. 3. Whether it is just to dismiss the claimant for fraud without giving him opportunity to defend himself. 4. Whether the claimant is as incompetent as alleged by the defendants. 5. Whether the claimant is entitled to the arrears of salaries and other emoluments due to him and being owed by the defendants. 6. Whether oral or written communication can affect the transmission of management information to staff. 7. Whether the claimant is entitled to a refund of the statutory deductions from his salary which were not remitted to the National Pension Commission. 8. Whether the claimant is entitled to a declaration that the malicious and libellous remarks made against his reputation and integrity is defamatory and that the claimant deserves a written apology. 9. Whether the schedule of outstanding emoluments and letter from PENCOM are admissible. 10. Whether the claimant is entitled to special damages. Regarding issue 1, the claimant submitted that the claimant was still, technically, an employee of the defendants by virtue of the fact that he is entitled to his emoluments until his contract was determined. That this position was affirmed in Aghwe v. Sapata Marine Service (Nigeria) Ltd [1976] 6 ECSLR 268 at 277 where Omo, J. did not only award the suspended employee salary during suspension but also the bonuses and salary increases declared during the period of his wrongful suspension. Also referred to the Court is Martins v. T. A. Braithwaite (Insurance Brokers) & Co. Ltd (1972) 11 CCHCJ 52. The claimant then reiterated what he said under cross-examination regarding the following allegations made against him – (a) On the sum of N640,218 transferred from Mr. Emmanuel Akwataighibe’s account, that he stated categorically that he received oral instruction from management (the 1st defendant) to credit the marketer’s account. The marketer (Mrs. Rebecca Ipinko) directed him (the claimant) to credit her account with Williams Global Trading Co. Ltd a family company in which she is a shareholder/director and managed by her husband. (b) The sum of N430,000 was credited to the account of Mrs. Rebecca Ipinko as a commission due to her for marketing the shares sold to Mr. Anene Nwankwo. This action was predicated on the oral standing instruction by management. (c) The claimant’s witness (Mrs. Rebecca Ipinko) admitted under cross-examination that her employer (the 1st defendant) was aware that she is a part-owner in the family business known as William Global Trading Co. Ltd. She told the 1st defendant and this was confirmed when a search was conducted at the Corporate Affairs Commission. (d) On the allegation that part of the money paid into William Global Trading Co. Ltd account (N50,000) was transferred to the personal account of the claimant, the claimant demanded strictest proof that such transfer is part of the alleged fraudulent act. However, that the claimant’s witness admitted in evidence that though she has other bank accounts she makes use of the company’s account for family businesses. In other words she issues cheques in and out of that account for sundry purposes. For example, she admitted issuing a cheque for N100,000 to Mr. Anene Nwachukwu as a personal loan from the same William Global Trading Co. Ltd account. She indicated that she uses all her bank accounts without preference as she is at liberty to credit or debit any of her bank accounts whenever it pleases her. The claimant then submitted that the defendants are, therefore, not justified to place the claimant under indefinite suspension without pay hence the claimant is demanding that the arrears of salary for the period be paid to him, with interest. On issue 2 i.e. whether it is in order to allege fraud against the plaintiff without providing evidence of the fraud, the claimant submitted that the purported invitation extended to him was a smokescreen as it was designed to lure him to provide technical service to a depleted workforce in the face of pressure from clients of the defendants. That he was not invited to attend to any alleged fraud or to address specific wrongs or issues for which he was suspended. It is trite that he who asserts must prove. The onus is on the defendants to adduce evidence of wrong doing on the part of the claimant that warranted his being suspended or dismissed. Whilst the claimant conceded that every employer is at liberty to reduce its workforce when it considers it necessary to do so, that it is imperative to reiterate that the defendants owe the claimant a duty to substantiate the fraud allegedly committed that necessitated his suspension without pay. That it is his fundamental right to know why he was suspended. To the claimant, during trial he proved beyond reasonable doubt that the witness, Mrs. Rebecca Ipinko, who was Head of Marketing, did not connive with him (or anybody) to defraud the defendants. That the commission earned by the marketer from shares sold to the investors identified was not denied by Mrs. Rebecca Ipinko. Also, contrary to allegations, the Ipinko family-owned company known as Williams Global Trading Co. Ltd is not only well known to the defendants they are also aware that the marketer (who was the only witness called by the claimant) pays all her earned commissions into the coffers of that company. When the defendants made fuss of the money credited to the marketer’s account with Williams Global Trading Co. Ltd (from commissions earned) the claimant’s witness requested the defendants to deduct it from her outstanding emoluments. In other words, Mrs. Rebecca Ipinko, during trial, never denied receiving the commissions arising from the shares sold to Messrs. Akwataghibe and Anene. The claimant then submitted that the claimant was not confronted with concrete evidence during the so-called in-house trial. That the defendants are merely trying to give a dog a bad name in order to hang it. The defendants merely changed their antics when the claimant refused to work under a cloud of suspension without pay because the subjects listed for the claimant to work on would take many days to conclude and reconcile. On issue 3 i.e. whether it is just to dismiss the claimant for fraud without giving him opportunity to defend himself, the claimant contended that it is a cardinal principle of natural justice that one must be given the opportunity to defend himself before being adjudged guilty of an offence. That the 1999 Constitution in section 36(4) gives ample credence to this fundamental right of the individual. That he was not presented with any issues bordering on fraud or wrongdoing. Under the common law all an employer needs to do is to afford his employee an opportunity of being heard before exercising his power of dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime. That this was echoed (obiter) by Wali, JSC in Yusuf v. Union Bank of Nigeria Plc [1996] 39 LRCN 1139. Also referred to the Court is Darma v. Oceanic Bank International (Nig) Ltd [2005] 4 NWLR (Pt. 915) 391. The claimant then submitted that it is not fair to accuse the claimant of fraudulent act without affording him the opportunity to defend the purported act. Otherwise, the 1st defendant ought to have named members of the panel that investigated the alleged fraud or frauds or brought them as witnesses. That it is pertinent to note that the issues listed in one of the letters pleaded were simply work in progress for which the claimant was begged and prevailed upon to reconcile so that the defendants’ clients can be sent bills and issued with demand notices for jobs completed. In fact, that the claimant was cajoled by officials of the first defendants to ignore and discountenance the letter suspending him from work; pleaded with him to come and attend to the pressing listed accounts and promising that they will come into some form of understanding or settlement of any contentious issues relating to the suspension of formal employment. Of course, the claimant refused and insisted that the letter of suspension be revoked before he can be coerced to resume work. This refusal by the claimant infuriated the defendants who then threatened to dismiss him. To the claimant, it is also pertinent to recall the following remote causes of events that unfolded later – (a) For reasons best known to the defendants they suddenly became hostile to the founding or pioneer management staff, particularly the four core staff seconded from City Code to form Shalom. Consequently, rather than being regarded as shining stars they suddenly became thieves and saboteurs. This misconception led to disengagement of the team, including the pioneer Managing Director who was frustrated out of the company. (b) The defendants took the marketer (Mrs. Rebecca Ipinko) to the police station for alleged fraud relating to the issue of commissions payable to her from shares marketed to investors. The claimant was expected to unjustly indict the accused but when he could not tell lies against an innocent person at the police station the 1st defendant was angry with him and that is the genesis of his problem. He told the police that based on evidence before him the commissions paid to the marketer were earned. However, the marketer stated that if the defendants insisted, that they should deduct the sum or sums from emoluments due to her. The defendants insisted that she should be paid the money in cash which she refused. See the case of African Continental Bank Ltd v. Ewarami [1978] 11 NSCC 269. [It should be noted that what this case is meant to illustrate is not told the Court.] (c) The marketer sued the defendants over the allegation but the matter was inadvertently taken to a wrong court (a magistrate court). The action is now being handled by a different solicitor. The claimant continued that one of the two legs of fundamental rights to fair hearing is that one should not be a judge in his own cause. That by alleging fraud and dismissing the claimant for the purported fraud the defendants have assumed the roles of the accuser and the judge in this matter. Regarding issue 4 i.e. whether the claimant is as incompetent as being alleged by the defendants, the claimant contended that before being employed by City Code from where he was seconded to Shalom Investment & Financial Services Ltd he was for nine years the Internal Auditor of Nigerian Law Publications Limited, a foremost law research and publishing company owned by the late Chief Gani Fawehinmi. That it is not a secret that the late Senior Advocate of Nigeria and human rights activist did not tolerate indolence or mediocrity. For someone to have served him meritoriously for so long before voluntarily resigning to seek greener pastures elsewhere puts a lie to the allegation that he was incompetent. In fact, that he won an award as best performing staff in one of the years. Secondly, that if the claimant was incompetent as alleged, why was he amongst the four pioneer management staff seconded from City Code to form what is known as Shalom Investment & Financial Services Ltd? That the four included a Managing Director, stockbroker, marketer and an accountant, the claimant in this matter. The truth of the matter is that a dog was being called a bad name in order to hang it. The defendants found it convenient to malign the claimant so as to avoid paying him his arrears of salaries and other outstanding emoluments. To the claimant, specifically, the allegation that claimant’s inefficiency – (a) caused the suspension of the 1st defendant from the trading floor of the Stock Exchange is baseless. The truth of the matter is that the first defendant did not have a professionally qualified stockbroker to meet certain statutory requirements. Even when the statutory fees were paid the absence of a stockbroker in the employment of the first defendant frustrated the attempt to resume trading. (b) caused the non-collection of operating licence despite having disbursed the sum of N10 million. This is not true. The licence could not be collected because the statutory requirements of a stockbroker could not be met by the 1st defendant. (c) was responsible for his inability to account for N29,823,421.40 being the balance of N52,177,500 meant for 37 million units of Investment & Allied Assurance shares. This is far from the truth. The claimant was never queried to give account of irreconcilable differences while in office. Moreover, it was not the responsibility of the claimant but the Allocation Department to reconcile total quantities of Investment and Allied Assurance shares received with the amount paid. (d) disenabled the 1st defendant to account for N22m meant for Sterling Assurance shares. It should be noted that the claimant is not the sole signatory to the 1st defendant’s account and it is preposterous to insinuate that the accountant possesses the power which he does not have. In addition, the amount was accounted for in the bank reconciliation exercise for the period. (e) The accountant that took over from the claimant did not find anything incriminating against the claimant despite taking his time before signing the handing over note. For example the handover letter was ready as at 11th January 2010 but the new accountant did not take over until 21st July 2010, having satisfied himself that everything was in order. Yet the claimant was blamed for the delay. (f) In financial management, it is statutory to appoint an external auditor to complement, complete or audit the accounts of an organisation. The appointment of Messrs. Ken Ohore & Co., a firm of auditors, is therefore ethical and should be seen in that light. On issue 5 i.e. whether the claimant is entitled to the arrears of salaries and other emoluments being owed to him by the defendants, the claimant contended that in the absence of any express terms of the contract between both parties – - by not giving the claimant notice of termination or payment of salary in lieu of notice; - by not giving the claimant an opportunity to defend himself of the alleged fraudulent acts or wrongdoing; - by trying to recall him through the back door to reconcile knotty accounts and complete outstanding works-in-progress; - by calling him a fraudster and thereby tarnishing his image and reputation; - by not reimbursing his transport expenses to the defendants office when he was officially invited; and - by not asking after his welfare and that of his family for over a year when the claimant had no job; he deserves to be granted the amended reliefs sought in this suit, including salaries and other emoluments totaling N10,895,230 together with the accrued interest. That it is trite that where a claimant has deposed to an affidavit seeking reliefs and the court granted the adoption of same it is deemed admissible in evidence. The claimant is, therefore, demanding the amended schedule of outstanding emoluments (together with the explanatory notes attached). Regarding issue 6 i.e. whether oral or written communication can affect the transmission of management information to staff, the claimant submitted that the choice of mode of communication is determined by speed, cost, effectiveness, clarity, audience, reaction, etc. That it should not be an issue which mode is chosen for what occasion or purpose so long as the intention is understood. The claimant maintains (and this was corroborated by the claimant’s witness) that the 1st defendant usually announced management decisions orally especially after management or staff meetings. Example of such policy pronouncements which were communicated orally include – - the increase in commission payable to marketers who sold shares of client-stocks above the benchmark price. - the several authorizations regarding the purchase and selling of shares. - the decision to pay half-salary to staff pending the improvement in fortunes of the company. - the decision to re-designate the claimant from Accountant to Internal Auditor/Compliance Manager. To the claimant, the purported board meeting of 17th March 2009 (ratifying the decision to pay half-salary to staff) was contrived to deceive this Court as no meeting actually took place. If it was important to hold a board meeting to half salaries why was it not important to hold a board meeting to reassign the Accountant to the position of Internal Auditor/Compliance Manager? That during trial the defendants’ witness could neither remember when the meeting took place nor when the Company Secretaries were appointed or those that attended the meeting. The point that is being made is that the claimant does not consider it necessary whether or not these management or policy decisions were communicated in writing or orally. What is important is that the decisions were taken at all, communicated and carried out. That it will be the height of insubordination for any employee to insist that it will not carry out management instruction unless such instruction is put in writing. That it is, therefore, irrelevant to insist that operational instructions to the claimant and other members of staff must be committed in writing. Such insistence is baseless and should be discountenanced by this Court. Anyone with experience in a work situation will know that management decisions require speed and promptness to be effective That the importance of obedience to instructions was laid down in the dictum of Obaseki, JSC in Sule v. Nigerian Cotton Board [19851 2 NWLR (Pt. 5) 17 at 38 – 39 when he declared as follows – When a servant grows too big to obey his master, the honourable course open to him is to resign in order to avoid unpleasant consequences should an occasion which calls for obedience be serviced with disobedience. Both common law and statute law brook no disobedience of lawful order from any servant, high or low, big or small. Such conduct normally and usually attract the penalty of summary dismissal. Disobedience ranks as one of the worst forms of misconduct in any establishment…. On issue 7 i.e. whether or not the claimant is entitled to a refund of the statutory deductions from his salary that were not remitted to the National Pension Commission (PENCOM), the claimant contended that under section 5 of the Pension Reform Act Cap. P4 2004 it is a sanctionable offence for an employer to fail to remit deductions from employee salaries. That it is also a sign of insensitivity on the part of the defendants to have refused, neglected or failed to remit moneys deducted from salaries together with their own (employer’s) portion of the pensions due to employees. Moreover, that a caring employer could have realised that the claimant had been out of employment for over a year and deserves some financial assistance by offering to pay him some stipends or reimbursing his fare to and from the office when he was invited. That the totality of these actions or inactions has convinced him to demand that his pension deductions should not only be paid but the employer’s contribution should also be released to him with interest. Regarding issue 8 i.e. whether the claimant is entitled to a declaration that the libellous and defamatory remarks made against his reputation and integrity are defamatory and that the claimant deserves a written apology, the claimant submitted that he had been maligned, humiliated and impugned because of the present dispute. In other words, the character assassination of him arose out of the issues bordering on this industrial dispute. That the jurisdiction of the Court in section 254C(k) of the National Industrial Court Act 2006 includes, amongst others – Relating to, connected with dispute arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto. It is the claimant’s contention, therefore, that this Court has discretion to adjudicate on matters incidental to the dispute between the plaintiff and the defendants as section 254C(k) of the NIC Act 2006 confers jurisdiction on the Court. If not for the dispute there would not have been any question of his reputation and integrity being impugned by labelling him a fraudster or incompetent thereby subjecting him to ridicule before his family and peers. On issue 9 i.e. whether or not the schedule of amended outstanding emoluments and letter from PENCOM are admissible, the claimant contended that this Court does not dwell on too much of technicalities at the expense of substantial justice. That the claimant has shown through the schedule and accompanying notes how he derived the amounts being claimed as outstanding emoluments. Also, we believe that it is not in contention that the employee’s and employer’s contributions deducted from the claimant’s salary are not remitted to PENCOM. What is in dispute (in the opinion of the defendants) is whether or not the PENCOM letter should be admissible in evidence by this Court. The claimant then referred to Yusuf v. Obasanjo [2005] 18 NWLR (Pt. 956) 96 where the Court of Appeal held that – The court cannot and does not receive documents which are not pleaded in evidence In other words, so long as the documents in question are pleaded the court is bound to admit them in evidence. The claimant went on that the amended schedule of outstanding emoluments (together with the accompanying explanatory notes) and letter from PENCOM dated 19th February 2013 are hereby pleaded and he urged the Court to consider them in arriving at a decision on this matter. Regarding issue 10 i.e. whether the claimant is entitled to special damages, the claimant submitted that he was not given any notice before his dismissal. In the absence of any contract to that effect he should have been notified in writing or paid some money in lieu of notice. Consequently, he submitted that he deserves some form of compensation or special damages for this willful and inhumane act by the 1st defendant. Consequently, he submitted that the declaration of Orah, JCA is apt in Steyer in (Nigeria) Ltd v. Gadzama [1995] 7 NWLR (Pt. 407) 305, which is that – While it is a truism that he who pays the piper dictates the tune and that he who has the power to hire has the power to fire, even in the case of a servant on probation who has not yet been confirmed, the employer or master can summarily dismiss the servant for gross misconduct. In the circumstances and the facts of this case, I consider the manner of the termination of the appointment as grossly irresponsible, wrongful and a naked exhibition of power…. In conclusion, the claimant asserted that he has shown that he was unfairly treated by trying to lure him to resume work without addressing the issue of indefinite suspension without pay. When the claimant refused to work under a cloud of uncertainty the defendants turned round to threaten him with a dismissal and, indeed, dismissed him without notice or payment in lieu of notice. He then urged this Court to grant his following prayers – (i) The sum of N10,895,230 (Ten Million Eight Hundred and Ninety-Five Thousand Two Hundred and Thirty Naira) being arrears of emoluments as shown in the attached amended schedule of emoluments outstanding. (ii) N5 million (Five Million Naira) as compensation or damages for wrongful dismissal. (iii) Refund of unremitted employee’s (claimant’s) pension deductions not remitted to PENCOM together with employer’s (defendant’s) contribution (516,000 + 472,500) totaling N988,500 (Nine Hundred and Eighty-Eight Thousand Five Hundred Naira), which forms part of the total emoluments being claimed in (i). (iv) A declaration that the libellous and malicious remarks made against the claimant is defamatory as it has affected his reputation and integrity. (v) A written apology to the claimant. (vi) The cost of this litigation. I indicate earlier that in responding to the defence processes, the claimant filed inter alia a written address he termed “claimant’s/counter defendant’s written address”. Strange as that procedure may be, I am constrained to consider it for purposes of this judgment. In the said written address, the claimant raised four issues for the determination of the Court. They are – 1) Whether the defendants/counterclaimants are justified in counterclaiming against the claimant. 2) Whether there is any veracity in the various fraudulent acts alleged against the claimant/counter defendant. 3) Whether or not the claimant/counter claimant defendant is capable or competent in his job. 4) Whether the claimant/counter defendant is entitled to the emoluments being claimed. Regarding issue 1), the claimant submitted that the decision by the defendants to file a counterclaim is an afterthought because they could not justify any of the flimsy, fictitious and unsubstantiated claims made against the claimant/counter defendant. That the defendants/counterclaimants were infuriated at the uncooperative attitude of the claimant who refused to work without addressing the issue of indefinite suspension without pay. That at no time did the defendants present specific acts of fraud or wrongdoing against the claimant during his visit, following the invitation extended to him. That on receipt of the claimant’s letter threatening to sue them, the defendants promised that the claimant will be embarrassed if he resorts to litigation. On issue 2), the claimant submitted that the defendants presented a spurious and unsubstantiated allegation that the sum of N1,070,218 was misappropriated by the claimant. That how this sum is derived at was not stated and it is illogical to deduce or imagine that someone just cooked up the figure in order to score a cheap blackmail against the claimant. That he who asserts must prove, citing section 131(1) and (2) of the Evidence Act 2011. That the sum of N430,000 was commission due and payable to Mrs. Rebecca Oluwasanmi Ipinko who sourced the client. It will be recalled that there was management decision to the effect that any staff or marketer who exceeds the company’s benchmark price of N1.50 per share (on designated stock) should be credited with the profit. However, that it is inconceivable to assume that there was no approval of the enabling entries by management as the Accountant merely carries out decisions of the management. That if the commission of N430,000 accrued to the marketer of the designated shares it also stands to reason that the Accountant will not be held responsible to refund the interest of N157,000 purportedly earned by the client there from. Regarding issue 3), the claimant submitted that if he was incompetent as is being portrayed, it is doubtful if he would be seconded from another stock-broking firm, City Code Trust & Investment Co. Ltd as the pioneer accountant of the new Shalom Investment & Financial Services Ltd. The claimant then simply went on to rehearse arguments he had already advanced as to how he worked in the law firm of Chief Gani Fawehinmi, etc. He continued that the sum of N640,218 was commission earned by Mrs. R. O. Ipinko on the shares sourced by her as a marketer/staff of the company/ However, that when issues arose out of this sum, the marketer requested the defendants to deduct the money from terminal benefits. In other words, Mrs. Ipinko did not deny receiving the money. That the allegation that the claimant diverted part of the proceeds to his personal account should be substantiated. It is not enough to allege that money was diverted without evidence of same. The claimant went on that the allegation that N10,000,000 was issued for licence which was not eventually collected is a fallacy. That the truth of the matter is that the defendants do not have a professionally qualified stockbroker to sign the necessary documentation as already argued. On the purported sum of N15,000,000 unaccounted for, that this is another case of turning the truth on its head. That all the records relating to this transaction was handed over to the new Accountant. On the sum of N22,000,000, that this was utilized for the purchase of Sterling Assurance shares and was amongst the issues handed over to the new Accountant. On the insinuation that the claimant hesitated before handing over to the new Accountant, the claimant argued that this is not true. That even though he was eager to hand over, it was the new Accountant who was not in a hurry to take over as can be seen in the new Accountant signing for the handover note seven months after it was dated. On the claimant transferring money to his personal account without authorization, the claimant contended that the onus of proof is on the defendants. Regarding issue 4), the claimant relied on all the averments and schedule of outstanding emoluments earlier frontloaded as part of his originating processes. That his claim is the minimum claimable under the circumstances, which ordinarily should have been higher than the figures being claimed. In conclusion, the claimant submitted that the counterclaim is a reprisal or smokescreen without any substance. That the defendants merely wanted to evade the payment of benefits due to the claimant. That it is elementary principle of management that not all management decisions are communicated in writing. The claimant then prayed the Court to grant all his reliefs and dismiss the counterclaim of the defendants. I heard learned counsel and considered all the processes filed in this case. In considering the merit of the case, I need to clarify a thing or two. Firstly, contrary to Order 20 Rule 2 of the NIC Rules 2007, the claimant only partly numbered the paragraphs of his written address. Secondly, the claimant under issue 8 of his written address talked of the “jurisdiction of the Court in section 254C(k) of the National Industrial Court Act 2006”. The NIC Act 2006 has no section 254C(k). The 1999 Constitution, as amended, which provides for the jurisdiction of this Court has section 254C(1)(k), but not 254C(k). Even when section 254C(1)(k) of the 1999 Constitution, as amended, confers jurisdiction on this Court in civil causes and matters relating to, connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto, I do not see how that paragraph (k) confers jurisdiction on this Court in defamation as the claimant argued. The “matter incidental thereto’ used at the end of the provision of section 254C(1)(k) must be read as relating to the payment or non-payment of the entitlements enumerated therein. Thirdly, the claimant under the heading ‘Relevant Facts’ of his written address had asserted that his action is for payment of arrears of salaries, refund of unremitted pension deductions and damages arising from wrongful dismissal, payment of interest on the sums outstanding at the prevailing market rate from the date judgment is given and at 15% until payment is effected. Under issue 7 of his written address, the claimant went on to argue, citing the Pension Reform Act 2004, that he entitled to his pension deductions. In fact at the end of his written address, the claimant’s prayer (iii) is for the refund of unremitted employee’s (claimant’s) pension deductions not remitted to PENCOM together with employer’s (defendant’s) contribution (516,000 + 472,500) totaling N988,500 (Nine Hundred and Eighty-Eight Thousand Five Hundred Naira), which forms part of the total emoluments being claimed. A look at the claimant’s complaint and statement of claim will reveal that nowhere is refund of unremitted pension deductions one of the reliefs claimed by the claimant. Relief 1 is for “the sum of N9,441,600 (Nine Million, Four Hundred and forty-One Thousand, Six Hundred Naira) only being arrears of emoluments”. Even though in the said prayer (iii) the claimant stated that the claim for pension refund is part of his relief 1 in the complaint and statement of claim, this cannot be the case. Pension deductions as the name implies are deductions from salary and so are not paid directly to the claimant when he receives his salary. So a claimant cannot lump a claim for pension deductions with that for emoluments as the claimant is trying to do in the instant case. In any event, even if the claimant is entitled to pension deductions, the framework of the Pension Reform Act 2004 is that the said deductions are payable only to the designated Pension Fund administrator (PFA) of the claimant, not to the claimant himself. Since the claimant is praying that the pension deductions which were deducted but not remitted to him or to PENCOM, should be paid to him, his claim in that regard is incompetent and so cannot be granted. The claim for pension deductions accordingly fails and is hereby dismissed. In making a case for his entitlement to outstanding emoluments and pension deductions, the claimant framed issue 9 and asked: whether the schedule of outstanding emoluments and letter from PENCOM are admissible. In this regard, the claimant submitted that the amended schedule of outstanding emoluments (together with the accompanying explanatory notes) and letter from PENCOM dated 19th February 2013 are hereby pleaded and he urged the Court to consider them in arriving at a decision on this matter. Now, on 25th March 2014, the claimant had moved a motion on notice wherein he prayed the Court amongst others for leave to amend the schedule of outstanding emoluments, earlier frontloaded and accompanying the originating processes. The amended schedule of outstanding emoluments (together with the accompanying explanatory notes) and a letter from PENCOM dated 19th February 2013 were then attached as documents sought to be additionally brought in for purposes of this action. The Court in a considered ruling struck out the said motion, which meant that the prayer to bring in these two documents was rejected. It is these two documents that the claimant is pleading in a written address and urging the Court to consider in arriving at a decision in this matter. What kind of legal practice is this? Is Mr. P. U. Oguike, counsel to the claimant, so desperate to win the case that he looses the decency to know that this Court has already ruled on the issue? Or is he trying to bring in the documents through the back door even when the Court had ruled against bringing them in? The desperation one sees with counsel to win at all cost is despicable and must be frowned on. It is bad advocacy and very unprofessional, bordering I dare say on professional misconduct. This Court will not tolerate it. In his own interest counsel is hereby warned to desist from such conduct. A look at the claimant’s complaint and statement of claim will reveal that the claimant’s relief 1 is as I stated earlier for “the sum of N9,441,600 (Nine Million, Four Hundred and forty-One Thousand, Six Hundred Naira) only being arrears of emoluments”. At the end of the claimant’s written address, the claimant’s prayer (i) is for “the sum of N10,895,230 (Ten Million Eight Hundred and Ninety-Five Thousand Two Hundred and Thirty Naira) being arrears of emoluments as shown in the attached amended schedule of emoluments outstanding”. By this fact, the Court is presented with two figures as the claim of the claimant for arrears of emoluments. Courts can only grant that which is asked. Since these two sums are conflicting, on this score alone, the claimant’s claim for relief 1 cannot be granted and so must fail. But even aside from this, did the claimant actually proof his case? In University of Jos v. Dr M. C. Ikegwuoha [2013] 9 NWLR (Pt. 1360) 478 the Supreme Court had cautioned that a claim for salary, allowances and the like without any particularisation as to how the sum was earned and arrived at makes such a claim vague; and because the Courts are not a father Christmas, such is not to be granted. I looked through the documents frontloaded by the claimant. The closest document I found that makes a reference to the claimant’s salary is the letter titled, “Re: Transfer on Secondment” dated 17/9/2001 with Ref. No. CTL/HQ/ADM/MPTD/TFRSEC/002/2001. This letter puts the claimant’s salary at Twenty-Five Thousand Naira (N25,000.00) per month. The period for which the claimant is claiming for the arrears of salary is not indicated. The claimant had frontloaded a document tagged “Outstanding Emoluments”. This document simply outlines sums of money under the following heads: Salary arrears; salary in lieu of notice; pension contribution (for employee and employer); gratuity for 11 years of service (the claimant did not frontloaded his very first letter of employment – since he argued that he was transferred to the present defendants from another company – and so it is not known how long he was in service); leave allowance for four years; and ex-gratia payment. How the claimant arrived at the sums stated in the document, “Outstanding Emoluments”, and how the claimant became entitled to the sums so stated, are all not disclosed to the Court. Aside from all of that, the document, “Outstanding Emoluments”, has no nexus with either the claimant or the defendants; and it is not endorsed, signed or dated. By Oghahon v. Reg. Trustee CCGG [2001] FWLR (Pt. 80) 1496; [2002] NWLR (Pt. 749) 675, an undated letter is invalid except proved by oral/parol evidence the date left out. The document accordingly has no probative value or weight. For emphasis, nothing was shown to the Court as the conditions of service or even the contract of employment indicating how the claimant became entitled to all the sums he claims. For all these reasons, relief 1 as claimed must fail. It is accordingly dismissed. In relief 3, the claimant prayed for a declaration that the libelous and defamatory remarks made against his reputation and integrity are wrong and that he deserves a written apology. However, Agbo v. CBN [1996] 10 NWLR (Pt. 478) 370 CA held that where a master accuses a servant of misconduct, whether proved or not, but decides merely to terminate his appointment in accordance with the service agreement without reference to the fact of misconduct in the latter of termination, the servant cannot rely on wrongful termination of appointment as cause of action to clear his name for his future, among other purposes. His recourse in an appropriate case may be in an action for defamation. In the instant case, the claimant may well file for defamation at the appropriate Court in order to secure relief 3. Relief 3 is accordingly inappropriate in the instant case and so cannot be granted. It is, therefore, rejected. Relief 2 is for “N5 Million (Five Million Naira) only as damages for wrongful termination”. The issue calling for determination here is whether the claimant has made a case for wrongful termination. In Adams v. LSDPC [2000] 5 NWLR (Pt. 656) 291 CA and Emokpae v. University of Benin [2002] 17 NWLR (Pt. 795) 139 CA, it was held that in an action for wrongful termination of appointment, the claimant must plead and prove the following – (1) That he is an employee of the defendant; (2) How he was appointed and the terms and conditions of his appointment, including duration and termination; (3) Who can appoint him and who can remove him; (4) The circumstances under which his appointment can be determined; and (5) That his appointment can only be determined by a person or authority other than the defendant. These conditions were reiterated in Akinfe v. UBA Plc [2007] 10 NWLR (Pt. 1041) 185 CA and NRW Ind. Ltd v. Akingbulugbe [2011] 11 NWLR (Pt. 1257) CA with the additional emphasis that it is not the duty of the employer to prove any of these facts. In the instant case, the claimant did not place before the Court his contract of employment (although under cross-examination he pointed out that he was not given one invariably since he was a transferred employee from another company) and/or the conditions of his employment so that these facts can be ascertained. In other words, the claimant did not place before the Court the terms and conditions of service in order for the Court to determine whether or not his termination/dismissal from the service of the defendants is wrongful or not. The claimant complained that he was placed on indefinite suspension without pay. The defendants admitted this fact. See paragraph 2.2(k) and (l) of the defendants’ written address. The law is that an employer has the right to suspend an employee. However, an employer cannot suspend an employee without pay where there is no express or contractual right to do so. See Hanley v. Pease & Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653. The rationale is that in suspending an employee without pay, the employer has taken it up upon itself (outside of the Court) to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. Though the defendants admitted that they suspended the claimant indefinitely and without pay, no contract of employment or conditions of service was frontloaded by the claimant in order to determine whether or not there is a provision as to suspension without pay. In Mr. Osamota Macaulay Adekunle v. United Bank for Africa Plc unreported Suit No. NICN/IB/20/2012 the judgment of which delivered on May 21, 2014, this Court, after reviewing the authorities, held as follows – In the instant case, no “conditions of service” was frontloaded by the claimant. So when Exhibit D suspended the claimant with immediate effect and without pay, there is no conditions of service against which this Court can determine the legality or otherwise of having to suspend the claimant without pay. It is the claimant who asserted that his suspension is wrongful. So, it is the claimant that must frontload the conditions of service in order for the Court to determine whether or not the suspension conforms to the conditions of service for it to be lawful. This duty, the claimant has not discharged. The “UBA Employee Handbook” upon which relief 2, for instance, is based was not frontloaded by the claimant. See also Ms. Claudia Ojinmah v. Coxdyn Nigeria Ltd unreported Suit No. NICN/LA/111/2012 the judgment of which was delivered on March 27, 2014. In the instant case, it is the claimant who is complaining that his suspension is wrongful. So, it is the claimant who must frontload the conditions of service showing the absence of express or contractual right to suspend without pay; or in order for the Court to determine whether or not the suspension conforms to the conditions of service for it to be lawful. This duty, the claimant has not discharged. So the claimant’s complaint that his suspension is wrongful cannot be granted. It is accordingly dismissed. I now turn to the counterclaim of the defendants. By the counterclaim, the defendants are praying this Court to order the refund to them the following sums – (a) The sum of N640,218.00 being the sum fraudulently transferred from Mr. Emmanuel Akwataghibe Madueke account which the 1st counterclaimant paid. (b) The sum of N430,000.00 being the sum fraudulently transferred from Mr. Anene Nwankwo account which the 1st counterclaimant also paid. (c) The sum of N157,000 being the accrued interest of the sum of N430,000 paid to Mr. Anene Nwankwo by order of Securities & Exchange Commission. The counterclaim also seeks for the payment of pre- and post-judgment interest on the judgment sum as well as cost assessed at N500,000.00. Like a normal claim, a counterclaim must be proved in its own right before it can be awarded. So the question that presently arises is whether the defendants have proved their counterclaim. From the documents frontloaded by the defendants, the claimant was issued a query. This first query is not frontloaded because the letter of 23/01/03 titled “Re: Query” simply refers to an earlier query that the claimant is said not to have answered. The letter then goes on to punish the claimant by the forfeiture of 3 days’ salary. The next letter is one undated but endorsed as received on 29/3/2010 wherein the claimant was asked to explain in writing under whose authority he transferred the sum ofN640,218.00 from Akwataghibe Emmanuel Madueke’s account to that of Williams Global Trading Co. Ltd. The claimant answered vide a reply of same date (29/3/2010) stating that the authority to transfer was given by the client’s accounting officer, Mrs. Rebecca Ipinko. An endorsement on the letter states that the claimant did not fully answer the query in terms of whether the authorization was verbal or written. By November 19, 2010 a letter of suspension was issued the claimant wherein it was stated that due to the unsatisfactory answer of the claimant to the query he was issued, he is placed on indefinite suspension because the transaction in issue opened up an investigation of fraud. Two other letters of February 8, 2012 and February 13, 2012 would later be written to the claimant asking him to come to the office to explain issues on IAA, SEC licence, Aiico Public Offer, Sterling Assurance Issue, AP Public Offer, Bagco Public Offer and Zenith Bank Offer. Nothing in these two letters of invitation said anything about the alleged fraud in issue. It was when the claimant’s solicitor wrote vide a letter of 15th February 2012 complaining that the defendants wrote vide a letter of February 22, 2012 inviting the claimant to come to the office and furnish the company with the information needed. On 20th March 2012, the defendants wrote to the claimant vide a letter of that date titled “Re: Suspension from Active Duty”, and referring to the letter of November 19, 2010, stating that investigation is complete and a panel has been constituted and would meet with the claimant on Wednesday 28th March 2012 at 12 noon. And by a letter of dismissal dated April 23, 2012, the claimant was dismissed from the services of the defendants and he was asked to return all company property in his possession including his identification card. Now the report of the investigation which the letter of dismissal stated has been completed was not frontloaded by the defendants in other for the Court to discern what the claimant was found guilty of, whether he was asked to make any refunds, etc. Secondly, the letter of dismissal, beyond stating that the claimant should refund all company property in his possession including the Identification card, said nothing about the refund of the sums now counterclaimed by the defendants. Thirdly, all through the oral evidence of the three witnesses (CW1, CW2 and DW), all kept alluding to the fact that the defendants are known for issuing verbal authorizations. DW under cross-examination said that when salaries were reduced by half, it was on the basis of the verbal instructions of the defendants. The endorsement of the defendants on the claimant’s answer to the query issued to him asked the claimant to state whether the authorization upon which he acted was verbal or written. The claimant’s witnesses (CW1 and CW2) under cross-examination all stated that the transfers of the funds complained of by the defendants were done vide the verbal authorization of the management of the 1st defendant. Lastly, the evidence before the Court is that sums complained of in the counterclaim were transferred to the account of a company that CW2 had interest, not that of the claimant. The defendants did not puncture this evidence. So I agree with the claimant that the defendants’ counterclaim is merely an afterthought. If the defendants had actually found the claimant guilty as charged, why did it not frontload the investigator’s report? There is no evidence on record to warrant this Court making a finding for the defendants in terms of their counterclaim. Even the statement of account of Williams Global Trading Co. Ltd with the 1st defendant printed on 28/03/2012 puts one of the sums claimed as “£640,218.00” i.e. in Pounds not in Naira as claimed in the counterclaim. I accordingly find and hold that the defendants have not proved their counterclaim. All the reliefs sought for in terms of the counterclaim fail and are hereby dismissed. On the whole, and for the avoidance of doubt, neither the claims of the claimant nor the counterclaim of the defendants succeed. They are both dismissed. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip