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By an amended complaint dated and filed on 22nd December 2011, the claimant claims the following reliefs against the defendant: (1) A DECLARATION that the termination/dismissal of the claimant’s appointment by the defendant vide its letter dated April 8, 2011 is a violation of the defendant’s Handbook for Management Staff. It is therefore invalid, null, void and of no effect whatsoever. (2) A DECLARATION that the termination/dismissal of the claimant’s appointment by the defendant vide its letter dated April 8, 2011 is a violation of the claimant’s right to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended; it is therefore invalid, null, void and of no effect whatsoever. (3) A DECLARATION that the defendant lacks the power to terminate/dismiss the claimant in so far as the appointment of the said defendant is illegal and thereby render the said termination null, void and of no effect whatsoever. (4) A DECLARATION that the termination/dismissal of the claimant’s appointment by the defendant vide its letter dated April 8, 2011 is a violation of the defendant’s Memorandum and Article of Association, it is therefore invalid, null, void and of no effect whatsoever. (5) A DECLARATION that the claimant is still in lawful employment of the defendant. (6) AN ORDER of this court setting aside the decision of the defendant as contained in the letter dated 8th April, 2011. (7) AN ORDER reinstating the claimant to his office and position as a General Manager in charge of listings of the defendant forthwith. (8) AN ORDER of this court directing the defendant to pay all the entitlements of the claimant from the date of the purported termination/dismissal till the date of Judgment. (9) AN ORDER awarding N50,000,000.00 (Fifty Million Naira) as general damages for the humiliation and the embarrassment suffered by the claimant as a result of his unjust termination of his employment. Accompanying the amended complaint are list of documents to be relied on by the claimant, list of claimant witness, witness statement on oath of the claimant, documents and a further witness statement on oath. In reaction, the defendant filed an amended statement of defence and counter claim, amended list of documents, defendants witness statements on oath and documents to be relied on at the trial. The claimant equally filed a reply to the amended statement of defence and defence to counter claim. From the amended statement of facts, the claimant’s case is that before his alleged dismissal he was the General Manager in charge of Listings Directorate in the defendant. That the defendant is a private company established as a limited by guarantee under the part A of CAMA. The claimant states that as a management staff, the defendant Employee Handbook (Management staff) applies to him. The claimant joined the defendant on the 4th May 1998 as a Deputy General Manager in Quotations Department where he rose to become the Head of the Department. That in September 2003 the claimant rose to become the General Manager of the defendant. Upon his appointment as the General Manager in 2003 he has attended and represented the exchange in various capacities. That in 2008, the claimant was among the management and council members of the defendant who attended a retreat in South Africa on the strategy to develop the defendant unto the leading exchange in Africa. The claimant averred that upon the completion of the retreat, he was subsequently appointed and made the Program Director of the Enterprise Transformation program of the defendant. That upon the retirement of the former Assistant Director General of the defendant in April 2010, he became the No. 2 officer to the Director-General as the most Senior General Manager of the defendant. The claimant also averred that further to the above, he was asked by the management of the defendant in addition to his position as the General Manager and Head of Listing and Quotation Department to take over the supervision of Accounts Unit in the Management Services Department from 1st April 2010 in a letter dated 1st April 2010 which the claimant pleads. That as the most senior staff his position as the No. 2 continued in the defendant after the purported removal of the then Director General Prof. Okereke-Onyuike in August 2010 which was irregular and unlawful and as well as the appointment of the said Interim Administrator, Emmanuel Ikazobor. The claimant states that during this challenging period he put in his best with other management staff as expected to facilitate the stability of the defendant and assisted the said Mr. Ikazobor as the Interim Administrator to effectively carry out his duty as the Interim Administrator. The claimant further averred that when the door was thrown open for the office of the Director-General of the defendant, as the most senior staff who believed seriously that he has what it takes to move the defendant to the next level, he applied to be considered for the position. The claimant states that out of over hundred candidates that participated, he along with seven others were shortlisted for the office of the Director General. That he was in fact number three on the list. The claimant states that Mr. Oscar Onyema who was No. 4 on the list was later selected and appointed as the Director-General of the defendant. That after the appointment of the substantive Director-General he made the necessary arrangement to the knowledge of the defendant for voluntary retirement in view of his participation and involvement in the contest for the Director-General. The claimant pleaded that after the selection of the Director-General, it became obvious to him that due to some reasons unknown to him, the said Emmanuel Ikazobor the Interim Administrator of the defendant wanted him out of the defendant before his scheduled and planned time for voluntary retirement and rather insisted that he should leave. The claimant stated that the said Interim Administrator of the defendant mounted series of pressure on him to tender his letter of resignation and even solicited for the intervention of both highly placed members of the defendant’s council and non members to persuade him to resign from the defendant prematurely. The claimant further averred that on the 18th March, 2011, the Interim Administrator of the defendant carried out what was referred to as “Internal re-organization” in which, the Interim Administrator appointed another junior officer to take over his position as the General Manager in charge of Listings Directorate. The claimant was neither given any posting nor any duty from then till the unlawful and irregular dismissal, thereby making him to be redundant without any disciplinary proceeding. Also that on the 21st March 2011, the defendant maliciously and without any justification sponsored in several newspapers an outright falsehood that he had resigned from his position as part of the restructuring in the exchange. That when all the Interim Administrator’s malicious efforts failed to unjustly pressure him to resign from the defendant, he resorted to cheap blackmail of threatening to deal with him on grounds of a forensic audit commissioned by him over the affairs of the defendant between 2008 – 2010. That in furtherance of his threat, the Interim Administrator caused a query dated the Friday, 25th March, 2011 to be issued to him through the office of one of his subordinates and requested that he should respond latest by 12 noon on Monday, the 28th March, 2011. That he was served this letter at about 8.15 am on Monday, the 28th March, 2011 and was asked to respond to it by 12 noon of the same day, thereby giving him only 4 hours to respond to the query. The claimant also states that he noticed some administrative lapses in the query letter and drew the attention of the Interim Administrator to same and he promptly and properly endorsed the query letter which again was served on him at about 11:55 am of the same date. The claimant equally averred that he was only able to respond to the letter at about 3.00 pm of the same 28th March, 2011. That in his letter to the Interim Administrator he drew the attention of the author of the query to the following facts: (i) That all the issues raised in the query have been discussed with the then Interim Administrator. (ii) That the issues raised in the query are matters that arose from the forensic audit, a subject of a subsisting litigation in the Lagos High Court, the outcome of which they are not in a position to determine one way or the other. (iii) That it would appear that as against the extant injunctive order of court, that the exchange has begun the implementation of the report of the forensic audit which he had not seen till that date. (iv) In view of the fact that all the issues raised in the query were issues that took place about 4 years ago and coupled with the above legal challenges, he would require more time to enable him properly respond to the said query. The claimant also stated that contrary to all the laid down rules and regulations governing his employment as a management staff, the defendant in less than 12 hours from the receipt of his said observations suspended him from work indefinitely without pay. That as bad and painful as his unjust indefinite suspension without pay was, the defendant also against all the known rules and regulations and within ten days of his suspension, wrongfully dismissed him through the letter dated 8th April, 2011 without any reason. The claimant states that he was neither given any reason for his dismissal nor heard by the defendant. That the query letter issued against him, he was only asked to explain what he knows about some Dangote Flour Mills Plc and Great Nigeria Insurance Plc shares bought by the Exchange sometimes in 2008. The claimant stated that he knew at the relevant time that the issues of the said shares were some of the issues that were brought up, investigated in the Forensic Audit over the affairs of the defendant between 2008 – 2010 in which several persons were invited to testify and state what they knew about the affairs of the defendant within the set period including the issue of the said shares. The claimant said he was not invited by the Forensic Audit before it submitted and published what they called Interim Report in which he was allegedly mentioned. That the report was serialized in many newspapers including the Business Day of Monday 8th to Friday 12th November, 2010. That upon the publication of the Interim Report of the Forensic Audit, he was invited to appear before the committee after many witnesses had appeared, to state what he knew about the shares and that he stated all that he knew. The claimant further states that upon the completion of the forensic audit committee, many members of the defendant who were indicted by the report sued and obtained injunctive orders to restrain the publication and implementation of the committee’s recommendation. That the courts subsequently nullified all the actions of the Security and Exchange Commission (SEC) over the defendant. That when the defendant raised these issues of the shares in the query letter dated 25th March, 2011 he only drew the defendant’s attention to the suit in court and the subsisting injunctive orders against the defendant on the matter and that he needed more time to reply to the query in view of the short notice. The claimant also stated that his conduct as a General Manager of the defendant was never investigated by anybody. He was never tried and found guilty by anybody or authority to his knowledge over any allegation whatsoever and the defendant failed to give him hearing before his purported dismissal, assuming there was any investigation. That he served the defendant with utmost diligence for over a decade without having any query till that of March 2011 and that since he joined the defendant till his purported dismissal, he was never found wanting in any form or failing his duty as a management staff. The claimant also averred that it took two weeks from the issuance of the query to his dismissal without the defendant hearing from him or giving him fair and adequate opportunity to defend himself, that he had been unfairly treated for no just cause but sheer malice on the part of the Interim Administrator, Mr. Emmanuel Ikazobor. The claimant states that as a pensionable Management Staff, he is entitled to be in service of the defendant and retire on attaining the age of 60 years and that he has not reached that age. The claimant further stated that consequent upon the unlawful and unjust dismissal, he appealed to the council of the defendant to reverse his purported dismissal through his letter dated 4th May, 2011 which the defendant ignored and refused to countenance, the claimant pleads the letter. The claimant whereof claims against the defendant as per his complaint. By its amended statement of defence and counter claim dated and filed on the 26th April 2012, the defendant stated that it is a private company limited by guarantee under the Companies and Allied Matters Act. That the employee Handbook (Management staff) applies to the claimant while the claimant was a management staff of the defendant. The defendant averred that the appointment of Mr. Emmanuel Ikazobor by the Securities and Exchange Commission as its Interim Administrator was regular and valid. That the appointment of Mr. Emmanuel Ikazobor as its Interim Administrator as the Chief Executive Officer was ratified by its council. That Mr. Emmanuel Ikazobor as the then Interim Administrator at all times material to this suit acted for and on behalf of the defendant. The defendant further stated that after the appointment of the Chief Executive Officer of the defendant with effect from 4th April 2011, the Securities and Exchange Commission, the Regulatory Authority for the defendant directed by a letter dated 1st April 2011, that there should be one month transition period commencing from 4th April, 2011 when the Interim Administrator would continue to serve to enable proper handing over by the Interim Administrator to the new Chief Executive Officer of the defendant. The defendant denied putting any pressure on the claimant to resign as alleged and further denies making the claimant redundant as alleged in paragraph 20 of the claimant’s statement of facts or at all. That no pressure was applied on the claimant either by the Interim Administrator as alleged or by any other person or at all and further denied resorting to blackmail or threat by the Interim Administrator against the claimant as alleged by him. Furthermore, that the defendant at all material time to the subject of this suit and on the disciplinary issues complained of, took the disciplinary steps in accordance with the provisions of the defendants employee Handbook (Management staff). The defendant averred that on 23rd March, 2011, the defendant through one of its employees served a query dated 23rd March 2011 on the claimant and that the claimant by an Internal Memo dated 25th March 2011, responded to the query of 23rd March 2011. The defendant also pleaded that from 4.00p.m. on 25th March 2011 till the morning of 28 March 2011, the defendant through one of its employees made several unsuccessful attempts to serve a query dated 25th March 2011 personally on the claimant who suddenly became or rendered himself unreachable until about 8.15 a.m. on 28th March 2011 when the claimant finally made himself available to receive and acknowledge receipt of the 25th March 2011 query. The defendant denied that the claimant did not have sufficient time and opportunity to respond to its queries as alleged by the claimant and put the claimant to the strictest proof of his allegations and in further response averred that the claimant not only had sufficient time to respond to the queries but did in fact confirm having sufficient time to respond to the queries. The defendant denied that the issues raised in the query arose from the forensic audit as alleged by the claimant even though the defendant assert that it is not precluded from exercising disciplinary authority over the claimant while in its employment with respect to matters connected with its activities and interest whether or not same arose from the forensic audit. The defendant in further response averred that the facts and information which formed the basis of the query issued to the claimant are part of the defendant’s internal and official records including but not limited to the facts occurring prior to, rather than arising from the audit report which facts and information were available or made available to the defendant in its usual course of affairs, business, dealings and from the public domain and available for defendant’s use as the claimants employer. The defendant in further response averred that the facts contained in the query occurred before and did not arise from the forensic audit report and were properly made the subject of the disciplinary process under and in accordance with the provisions of the defendant’s employee Handbook (Management staff). The defendant denied implementing the forensic report as alleged by the claimant or at all and the defendant further denies acting against an injunctive order of any court as alleged by the claimant. The defendant also averred that it is not precluded by any court order from carrying out its internal management and administrative functions, including the exercise of disciplinary oversight, supervision and authority over the claimant who was the defendant’s employee at all times material to this suit. The defendant denied that the claimant require more time than he had to respond to the query and put the claimant to prove otherwise. That rather than address and respond to the query the claimant chose to spend his time on immaterial and extraneous matters that had nothing to do with the query’s content and essence. The defendant equally denied acting against all laid down rules and regulations as alleged by the claimant. That the defendant suspended the claimant in accordance with the applicable rules and regulations of the defendant and in the proper exercise of the defendants disciplinary authority, function, discretion and prerogative as the claimant’s employer. That according to the internal and official records of the defendant the funds of the defendant were utilized to purchase shares of Dangote Flour Mills Plc for the claimant and shares of Great Nigeria Insurance Plc for Impact Management Limited, a company of which the claimant is both a director and shareholder. The defendant averred that according the internal and official records of the defendant, the claimant and the said Impact Management Limited never paid any consideration for the said shares. The defendant in response averred that according to its internal and official records and records available to it, in November 2007 N90,000,000.00 (Ninety Million Naira) of the defendant’s funds were used to purchase 6,000,000.00 (Six Million) units of Dangote Flour Mills Plc shares ostensibly for the NSE/CSCS Cooperative Society. That subsequently the claimant took 1,000,000 units of Dangote Flour Mills Plc shares out of the 6,000,000 without paying any consideration either to the defendant whose funds were used to acquire the shares or to the cooperative. The defendant also averred that according to the defendant’s internal and official records, in May 2008, the sum of N114,978,975.00 (One hundred and fourteen Million, Nine Hundred and Seventy Eight Thousand, Nine Hundred and Seventy Five Naira) out of the defendants funds was used to purchase 30,000,000 (Thirty Million) units of Great Nigeria Insurance Plc shares ostensibly for the co-operative. That subsequently, Impact Management Ltd received 8,000,000 (Eight Million) units out of the said Great Nigeria Insurance shares without paying consideration either to the defendant whose funds were used to acquire the shares or to the cooperative. That the defendant as the claimant’s employer pursuant to the terms of the defendant’s employees Handbook for the management staff issued a query to the claimant to explain why disciplinary action should not be taken against the claimant by the defendant for the said acts. That the defendant exercised its disciplinary duties within and in line of its internal management and administrative process and functions as the claimant’s employer. The defendant denied that the claimant was not given fair hearing. The defendant further averred in response that the claimant had adequate notice of the facts forming the basis of its query and the intention to take disciplinary actions against the claimant and had adequate opportunity to respond to the query. The defendant denied in the circumstance enumerated hereof that the claimant was never found wanting in any form or failing in his duty as a management staff as alleged and the defendant denied having unfairly treated the claimant as alleged or at all and the defendant further denies having or acting with any malice towards the claimant as alleged or at all. The defendant denied that the claimant is entitled to be in its service until the age of 60 as alleged and in the circumstance. The defendant also denied that the claimant was unjustly and unlawfully dismissed as alleged or at all and in further response averred that the defendant as the claimants employer having considered the claimant’s response to the query issued to him and having suspended him, dismissed him on the grounds of misconduct and serious misconduct upon the terms of its Employees Handbook for management staff. Furthermore, that pursuant to the claimants appeal to the defendants council pursuant to the provisions of the defendants handbook for management staff, the defendant’s National Council referred the claimant’s appeal to one of its committee, namely the Finance and General purpose committee to conduct an enquiry and consider the claimant’s appeal against his dismissal and make recommendations to the National Council for the National Council to take a decision on the said appeal. Continuing, the defendant further responded that contrary to the claimant’s allegations that the defendant’s National Council ignored and refused to countenance the claimant’s written appeal to have his dismissal reversed, the claimant actually appeared before the finance and general purpose committee of the National Council at its meeting held on the 16th day of June 2011 to conduct an enquiry and consider the claimants appeal against his dismissal and make recommendations to the council. The defendant also averred that contrary to the claimant’s averment that the defendant’s National Council ignored and refused to countenance the claimant’s written appeal to have his dismissal reversed, the finance and general purpose committee of the National Council after it had conducted its hearing on the claimant’s appeal against his dismissal forwarded its recommendations to the defendant’s national council for its decision on the claimant’s appeal. The defendant in further response avers that the claimant did not wait for the National Council’s decision on his appeal before filing this action. Also that the National Council indeed on 21 July 2011 received the report of the Finance and General purpose committee, considered same and resolved to allow the claimant’s dismissal to stand. The defendant continued that it will at the trial of this suit contend that the claimant’s suit is incompetent having regard to: (i) The claimant having taken advantage and opportunity of the defendant’s internal disciplinary process provided in the employee Handbook for Management staff which is binding on the parties and which the claimant in fact initiated and participated in before commencing this suit, and (ii) The parties being bound by the defendant’s council’s decision on the claimant’s appeal against his dismissal which the claimant initiated and participated in and (iii) The binding alternative dispute resolution process contained in the Employee’s Handbook for the management staff which the claimant voluntarily initiated and the parties have adopted and implemented. The defendants also averred that it shall at the trial of this suit contend that this suit be dismissed for failure to disclose a reasonable cause of action and for jurisdictional defects and prayed the court to dismiss the entire suits with substantial costs. The defendant also counter claimed against the claimant Binos Dauda Yaroe and by and through its Attorneys complaining of the claimant as follows: That the defendant is the owner of a motor vehicle being a Toyota Prado Land Cruiser car model of 2008 year of purchase with vehicle Registration No. DG 418 APP. That the vehicle was assigned and delivered to the claimant while he was an employee of the defendant to be returned to the defendant if the claimant ceases to be in the employment of the defendant. That upon the claimant’s dismissal by the defendant, the defendant demanded the return of the vehicle from the claimant in its letter of dismissal dated 8th day of April, 2011 to the claimant. That the claimant has failed and refused to return or deliver up the vehicle and continues to retain possession of the defendant’s property against the defendant’s consent. That the defendant claims a return of the vehicle plus damages for its wrongful detention plus costs. PARTICULARS OF DAMAGE (i) Cost of daily car rental of the vehicle: N35,000.00 per (ii) Date of demand of the vehicle: 8 April, 2011 CONVERSION The defendant re-alleges that the claimant converted the vehicle in his premises to his own use. That by reason of the conversion the defendant has suffered loss and damage. PARTICULARS OF DAMAGE (i) Cost of daily car rental of the vehicle: N35,000.00 per day (ii) The estimated value of the vehicle: N10,000,000.00 (ii) Date of demand of the vehicle: 8 April, 2011 INTEREST AND UNJUST ENRICHMENT The defendant asserted that as a result of the facts and matters set out above, and having been wrongfully kept out use of the vehicle by the claimant it is entitled to and claims benefits and interest on any sum awarded in its favour at bank lending rate using Fidelity Bank Plc rates as a guide, from the date that vehicle was demanded from the claimant. That in view of the claimant’s wrongful retention of the vehicle, thereby keeping the defendant out of its use, the claimant have been unjustly enriched at the expense of the defendant and the defendant is therefore entitled to special damages and a reversal of the unjust enrichment of the claimant by recovering the damages for the wrongful retention of the vehicle with interest on same at bank rate using Fidelity Bank Plc rates as a guide from the date the demand of the vehicle till judgment and thereafter at 22% per annum until the full payment. That the defendant is entitled to interest at the same rate as aforesaid on the value of the vehicle converted from the date of the conversion until delivery up. Wherefore, the counter claimant prays that judgment be entered against the claimant for – (i) An order for delivery up of the vehicle (ii) Damages in the sum of N35,000.00 per day until the delivery up of the vehicle. (iii) Alternatively, damages for conversion plus any other interest, costs, or expenses that accrue through the date of Judgment. Accompanying the defendant’s amended statement of defence and counter claim are amended list of witnesses, witness statements on oath, along with various annexures named Annexure NSE 3A – Annexure NSE 24. The claimant filed a reply to the amended statement of defence and a defence to counter claim dated 3rd May, 2012 but filed on 7th May, 2012. The claimant in reply denied that there was compliance with disciplinary procedure in the defendant’s employee handbook for management staff, letter of employment and natural justice. The claimant further to the above reiterates that upon his schedules as General Manager of Listing Directorate being taken away on 18th March 2011, he was since then until his alleged dismissal not assigned any portfolio or given any schedule of work but the defendant through the then Interim Administrator, Mr. Emmanuel Ikazobor mounted all sort of pressure on him to put in his resignation. The claimant averred further that the letter dated 23rd March, 2011 was not addressed to him and this he pointed out in his memo dated 25th March, 2011. That the 25th March, 2011 was a Friday and that like any other working day, he closed at the office and left for the weekend and resumed as usual on the morning of 28th March, 2011 being a Monday, wherein the defendant served the query on him at about 8.15 am. The claimant further averred that in the said query, he was asked to respond to the query before 12 noon on the same 28th March, 2011 on allegations that took place about four years prior to the query, thereby giving him about 4 hours to respond to the query and he drew the attention of the defendant to the insufficiency of the time to respond to the query. That all the issues raised in the query were direct issues from the forensic audit in which he was not heard and more so there was and is a subsisting order of court against the use of the forensic audit report or any part of it for any purpose whatsoever. The claimant in further denial of the above averred that at the relevant and material time that he was issued the query on issues bordering on the report of the forensic audit there were subsisting injunctive orders which are subsisting till date, from the following cases: Nos. M/962/2010: Mrs. Ndi Okereke-Onyuike v. SEC & Ors, M/965/2010: Mrs. Yinka Idowu v. SEC & Ors in the High Court of Lagos State restrained the defendant in this case “from circulating, publishing and or cause to be acted upon in any manner howsoever the report of its purported findings contained in a report commissioned by the claimant”. The claimant further averred that he was not given reasonable time to respond to the query and he told the defendant of the need to be given more time, most of the issues in the query having happened about four years before the query and thereby violated all the laid down rules and regulations for issuance of query and suspension of management staff. The claimant restated that all the issues raised in the query were from the forensic audit report, a subject of the extant injunctive order of the Lagos State High Court as referred to above and the query was not in compliance with the defendant’s employee’s handbook for the management staff, the rules of natural justice, the constitution of the Federal Republic of Nigeria 1999 as amended and non compliance breached his right to fair hearing. That paragraph 26 – 29 of the statement of defence from the crux of the forensic audit of which there was an extant injunctive orders as earlier mentioned and so paragraph 30 of the statement of defence is therefore not correct and is denied. The claimant also responded that upon his appeal and having waited for a reasonable time without any response from the defendant’s council, he had to institute this action, having been without job and any means of livelihood. The claimant continued that he was and is not a member of council of the defendant or its Committee on Finance and General Purpose at the relevant time and can therefore not know the internal workings of the council and the committee of the defendant and that before he was invited to appear before the said committee this suit had been commenced. The claimant also averred that he appeared before the Finance and General Purpose Committee which is chaired by the then Interim Administrator on the 16th June, 2011 and the outcome of which has not been communicated to him till date. That at the hearing, it would appear that the members of the committee have made up their mind as they would hardly allow him to talk or present his case but rather want him to compromise his position. That till date no communication by any means has been given to him in response to his letter by the defendant’s council or its committee or anybody and not even the said dismissal letter has been personally served on him. The claimant states that this suit is properly and competently instituted and that his appeal to the council of the defendant has not been responded to till date and that the incompetent civil action instituted against him by the defendant and 27 others at the Lagos State High Court has been discontinued by the defendant. In defence to the counter claim, the claimant denied in entirety each and every paragraph of the counter claim. The claimant states that the said vehicle is given to him as his official vehicle and attached to his office and the allegations against him are not true. The claimant denied the allegation of conversion and wrongful detention of the vehicle, the claimant having instituted this action to challenge his alleged suspension and illegal subsequent dismissal. The claimant denied that the counter claimant is entitled to any interest or value or interest of any kind or rental value of any description or damages on the vehicle. That the usage of the vehicle is part of his entitlement as management member and as a matter of practice, he would have retired with the car with payment of book value. The claimant wherefore prays the court to dismiss the counter claim with heavy cost. At the trial, the claimant testified for himself as CW1. He swore by the Holy Bible and thereafter adopted his witness statement on oath and a further witness statement on oath in support of his case. The two witness statements on oath of PW1 are on all fours with the statement of facts, and defence to counter claim and so need no repetition. Under cross examination by the defendant’s counsel, CW1 agreed that the query he was issued is the one dated 25/3/2011. He said the document dated 23/3/2011 was an internal memo which was captioned query but was not addressed to him. He responded that it was received by him. CW1 also said he did not return the document on that day. He agreed that he responded to the said document in writing on the 25/3/2011. CW1 answered that his wife’s name is Mrs. Salamatu Munya Yaroe. CW1 also agreed that his first daughter’s name is Sarah Tansi Yaroe. He also agreed that he has another daughter by name Linda Binoes. CW1 also agreed that he has a son named Stephen Anoye Binos. He also agreed he has a son named David Binos. He also agreed that he is a Director of Impact Management Limited, that it is a family company and he is a Director. CW1 says that his wife is also a Director and all his children are shareholders. CW1 says two of his nieces are also shareholders. He also agreed that Impact Management Ltd has shares in Great Nigeria Insurance Plc. He agreed that the shares of Great Nigeria Insurance Plc were transferred from the account of the NSE/CSCS Multipurpose Co-operative Society to Impact Management Ltd. He said Impact Management Ltd did not pay but that he as a director the payment may have been deducted from his salaries and allowances, though he did not have any document to show that payment has been made. CW1 also agreed that he holds 1 million units of Dangote Flour Mills Plc shares. He said these shares were also transferred to him from the account of the NSE/ Cooperative Society. CW1 said he is not in a position to confirm if the said shares were paid for by the Nigerian Stock Exchange. He said he became aware that the shares were in the account of the co-operative when he was instructed by his CEO of the NSE at the time to effect the transfer. That the CEO at that time was Professor Ndi Okereke-Onyuike. CW1 responded that he did not make any inquiry how that shares came into the Co-operative Society. He said the remaining five million shares were transferred to other members of the Co-operative Society. That the membership of the Co-operative Society at that time was about a hundred. He agreed that he was served with a letter of dismissal by e-mail. That after the letter of dismissal issued to him, he wrote an appeal to the council of the defendant. He also agreed that the council referred his appeal to a committee of the Council Finance and General Purpose Committee under the Chairmanship of Mr. Emmanuel Ikazobor who was the person that dismissed him via email. He agreed that he appeared before the committee. He also said the committee invited him and he appeared. He said Mr. Ikazobor stepped aside as the chairman of the committee but that Mr. Ikazobor remained in the committee during the proceedings. That another member of the committee took over as the chairman. CW1 said Mr. Ikazobor also gave evidence to the committee on the same date and was seated throughout the meeting. CW1 also agreed that Mr. Ikazobor made a presentation to the committee. He said he got the invitation to the committee about four days earlier when he came to the defendant’s office on his own volition to see the then CEO of the exchange. He agreed that he wrote a letter to the Vetiva Capital Managers for himself and four others. He said he is not in a position to confirm payment for the said shares since he did not have access to his account to confirm payment. CW1 says he cannot now remember the value of the one million shares he was allotted at that time. He says he cannot also remember the value of the Great Nigeria Insurance Company shares. He agreed he was given an official car as a General Manager of the defendant, a Toyota Prado Land Cruiser Jeep. He said that after his dismissal he has not yet returned his official car back to the defendant because the matter is in court. CW1 also responded that after his dismissal his employers have not been able to give to him his statement of account as to whether he is still owing or not. He told the court that he gets paid by direct payment into his account with his bank, First Bank Plc. He also told the court that he gets pay slip for monthly salaries. That deduction made from the monthly salaries is shown on the pay slip. That if the payment for these shares were deducted from his salary it will be on the pay slips. CW1 says if there are deductions from his salary he will notice it from the bank statement. That his salary is always constant until it is reviewed or he is promoted. That if there is any change in his salary he will notice it. He also said his bonus, performance bonus are paid by direct deposits into his bank account. CW1 said he was the chairman of the Cooperative Society since inception up to the time he was dismissed from the defendant. Under re-examination, CW1 said there were deductions but he did not know how much was deducted. That after the meeting where he was invited at the end Mr. Ikazobor and himself left the meeting together. The claimant thereafter closed his case. The defendant opened its defence by calling its first witness hereinafter referred to as DW1. The DW1 is Mr. Cyril Eigbobo who is an accountant with the defendant. He swore to by the Holy Bible to speak the truth and thereafter adopted his witness statement on oath. DW1 deposed in his statement on oath that he is the Chief Financial Officer of the defendant. That the facts which he deposed are within his personal knowledge, derived in the course of his employment available to him in the official records of the defendant or made available by other officers of the defendant or other entities derived in the course of their official/professional duties which facts he verily believe to be true and correct. That according to the defendant’s internal and official records and records available to him, funds of the defendant were utilized to purchase shares of Dangote Flour Mills Plc and shares of Great Nigeria Insurance Plc. That according to the defendant’s internal and official records and records available to him, in November 2007, N90,000,000.00 (Ninety Million Naira) of the defendant’s funds were used to purchase 6,000,000 (six million) units of Dangote Flour Mills Plc shares for the NSE/CSCS Cooperative Society and the funds used were not returned to the account of the defendant whose funds were used to acquire the shares. That according to the defendant’s internal and official records and records available to him, in May 2008, the sum of N114,978,975.00 (One Hundred and Fourteen Million, Nine Hundred and Seventy Eight Thousand, Nine Hundred and Seventy Five Naira) of the defendant’s funds were used to purchase 30,000,000 (thirty million) units of Great Nigeria Insurance Plc shares for the Cooperative and the funds used were not returned to the account of the defendant whose funds were used to acquire the shares. DW1 referred to the Exhibit DW1 – DW5 which are already in evidence as relevant to his testimony to support his deposition. Under cross examination by the claimant’s counsel, DW1 responded that he is a management staff of the defendant. DW1 agreed that the claimant was also a management staff, a General Manager. He said it is true that in 2007 – 2008 when Exhibits DW1 – DW5 were made there was a Chief Executive Officer of the defendant who occupied the office of Director-General. DW1 also agreed that he was at that time a Chief Accountant at the defendant. He said he did not know whether the CEO/the Chief Accountant were signatories to the account of the defendant. He agreed that the Chief Executive Officer approved and authorized the vouchers. DW1 says he did not know at that time if management staff of the defendant enjoys advances and loans. DW1 said he joined the defendant in January 2012. That from the records he knows that management staff of the defendant were enjoying advances and loans. He agreed that their advances and loans were normally offset from their entitlements i.e. salaries, allowances and bonuses due to them. DW1 also agreed that each of the management staff who are owing their records is kept by the accounts department. He also agreed that there is a Co-operative Society in defendant organization in which members of staff are members. He also agreed that any indebtedness from this Cooperative Society is offset from the monthly entitlements of the staff. DW1 also agreed that owing in the staff Cooperative Society is not an offence in the defendant company. Under re-examination, DW1 answered that there is a process for obtaining loan and it is by application. DW2 whose name is Joseph Mekiliuwa. He also swore on the Holy Bible to speak the truth. He thereafter adopted his witness statement on oath as his evidence. He told the court that he is a Computer Scientist and he works with the Central Securities Clearing System Ltd (CSCS). DW2 deposed that he is the Deputy General Manager and Head of the Computer Department of the Central Securities Clearing System Ltd (CSCS). He said the facts to which he depose are within his personal knowledge, derived in the course of his employment and available to him in the official records of CSCS which official records are kept in and facts made available by other officers of CSCS or other entities derived in the course of their official/professional duties which facts I verily believe to be true and correct. DW2 says he is conversant with the facts to which he deposed herein. That upon enquiries by the defendant and others he caused the records of CSCS to be reviewed regarding dealings in the shares in the account of the NSE/CSCS Multipurpose Shares Cooperative Society. That the review was conducted following which he issued reports contained in CSCS letters dated October 13, 2010 addressed to Independent Securities Limited and the Interim Administrator of the defendant respectively. That according to CSCS records, 6,000,000 (six million) units of Dangote Flour Mills Plc shares were purchased into the account of the Cooperative and subsequently were crossed over from the Cooperative’s account to certain individuals and entities, including 1,000,000 (one million) units sold to the market. DW2 further deposed that according to the CSCS records, 30,000,000 (thirty million) units of Great Nigeria Insurance Plc shares were purchased into the account of the Cooperative and subsequently were crossed to certain entities, including a company styled as Impact Management Ltd, which received 8,000,000 (eight million) units of the said Great Nigeria Insurance Plc shares. DW2 also tendered Exhibits DW6 and DW7 in support of his testimony. Under cross examination by the claimant’s counsel, DW2 responded that he joined the CSCS Ltd in 1997. He agreed that as at 2007 – 2008, Prof. Ndi Okereke-Onyuike was the Director-General and Chief Executive of the defendant. DW2 also agreed that as at the time he wrote his report on 13/10/2010, Prof. Ndi Okereke-Onyuike was no longer the Chief Executive of the defendant. DW2 responded that from the records, the original purchaser of Dangote Flour Mills and Great Nigeria Company was originally purchased by the NSE/CSCS Cooperative Society. He agreed that as at 2007 – 2010 the Director General of the defendant was also the Chairman of the CSCS Ltd. He said he did not know who was the Chairman of the NSE/CSCS Multipurpose Shares Cooperative Society between 2007 – 2010. He says he was a member of NSE/CSCS Cooperative Society. He also agreed that it was not only Impact Management Ltd that was transferred shares of Dangote Flour Mills Plc and Great Nigeria Insurance Company. DW2 says he did not know the authority who orders transfer of the shares. He also says he knows as a fact that Prof. Okereke-Onyuike also got transferred to herself shares of Dangote Flour Mills Plc and Great Nigeria Insurance Company. There was no re-examination of DW2. The third defendant’s witness is Ibrahim Fearon hereinafter known as DW3. He swore by the Holy Bible to speak the truth. DW3 adopted his witness statement on oath. He deposed that he is the Deputy Manager, Human Resources of the defendant. That the facts to which he deposed are within his personal knowledge derived in the course of his employment and available to him in the official records of the defendant, which official records are kept in the department in which he serve and other departments of the defendant and facts made available by other officers of the defendant or other entities derived in the course of their official/professional duties which facts he verily believe to be true and correct. That the claimant Binos Yaroe was an employee of the defendant and as such the defendant kept personnel records of and concerning him. That part of the claimant’s personnel record is the Employee Record Update Form kept with respect to, concerning and completed by the claimant, a copy of which Employee Record Update Form is attached to the list of documents filed in the suit and therein marked Annexure “NSE 14”. DW3 further deposed that at all times relevant to this law suit, he worked under the supervision of Abdulmumini Ado Yola who was, until on or about 12th May 2011, Head of the Administration and Human Capital Department of the defendant. That on 30th March 2012, Abdulmumini Ado Yola ceased to be an employee of the defendant and securing his court attendance may cause considerable delay and substantial expenses. Also that while in the employment of the defendant, Abdulmumini Ado Yola in the course of his official duties was required to and he did issue a query to the claimant dated 23 March 2012 which he served on the claimant on the same day in his office on the 8th floor of the Stock Exchange Building and the claimant acknowledged receipt of same in the log/dispatch book kept for that purpose. That while in the employment of the defendant, Abdulmumini Ado Yola in the course of his official duties was required to and he did issue a query to the claimant dated 25 March 2012 which was served on the claimant on 28th March, 2011. DW3 tendered Exhibits DW7, DW8 and DW9 which were admitted. Under cross examination by the claimant’s counsel, DW3 said he joined the defendant in June 2010. DW3 said he is very familiar with the defendant’s employee handbook for junior staff, senior staff and for management staff. He agreed that management staff can only be appointed and removed by the council of the defendant. DW3 also said there are three categories of misconduct prescribed in the Management Handbook. He also agreed that any management staff who is found guilty or offences in category ‘A’ can be summarily dismissed. He also agreed that any management staff that is accused of any misconduct in the handbook is liable to be suspended with half pay. That the suspension is to allow for thorough investigation of the allegation. That after investigation, the management staff concerned may be found guilty or may be acquitted. Also that after investigation the affected staff will be given the report or outcome of the investigation before his dismissal. DW3 agreed that at the time the claimant was suspended, there was a new Director- General/Chief Executive Officer who was appointed. That the new Director-General and Chief Executive Officer took over on the 4/4/2011. DW3 agreed that Abdulmumini Ado Yola was a junior officer in rank to the claimant. He also said in his organization it is the senior office that can query the junior and not the other way round. DW3 said it was the Interim Administrator Mr. Emmanuel Ikazobor who authorized that the query be issued to the claimant. He said he does not know if the answer to the query was forwarded to Mr. Ikazobor for a decision. He said he did not know whether Mr. Abdulmumini Ado Yola took a decision on the reply of the claimant’s query. He also said he did not know whether Mr. Abdulmumini Ado Yola was competent to order the suspension of the claimant without pay. He also said he did not know if it was Mr. Emmanuel Ikazobor the Interim Administrator who ordered the issuance of query to the claimant, and suspension consequent upon this reply to the query without pay pending further investigation. DW3 also says he did not know who conducted the investigation against the claimant during the period of his suspension. He also did not know from the records who took the decision to dismiss the claimant on the 6/4/2011. He also did not know whether owing debt to NSE/CSCS Cooperative Society is an offence. DW3 says that non payment for share is not a misconduct in the handbook. He also answered that suspension without pay is also not prescribed in the handbook. He also said he did not know if Mr. Emmanuel Ikazobor ordered forensic audit of the account of the defendant. DW3 said he knew Tinuade Awe. That she was not a permanent staff of the defendant before the appointment of Mr. Ikazobor as the Interim Administrator. He said he did not know whether Mr. Ikazobor was the chairman of the Finance & General Purpose Committee of the defendant the time he was appointed in October 2010 till May 2011. That Mr. Ikazobor was still a member of council of the defendant up to March 2012. He said he did not know if Ms Tinuade Awe was appointed by Mr. Ikazobor as his Special Adviser. DW3 also said he did not know if Ms Tinuade Awe was the Secretary of the Finance and General Purpose Committee of the defendant that considered the appeal of the claimant against the dismissal. He also said he did not know who is or was the chairman of the General Purpose Committee of the defendant. DW3 also said he did not know if the removal of the former Director-General/CEO of the defendant had been annulled by a court of law. Under re-examination DW3 said as at the time of the dismissal of the claimant and suspension there was an Interim Administrator exercising the functions of the Director General/CEO, Mr. Emmanuel Ikazobor. The next defendant’s witness is Ogbonnaya Nwachukwu i.e. DW4. He swore on the Holy Bible to speak the truth. DW4 also adopted his witness statement on oath as his evidence. He deposed that he served at all times material to this law suit as an Assistant Officer and Unit Head of Documentation in the Administration Department of the defendant. That as the Head of Documentation, he was in charge of the mailroom of the defendant. That the facts which he deposed are within his personal knowledge, derived in the course of his employment and available to him in the official records of the defendant or made available by other officers of the defendant or other entities derived in the course of their official/professional duties which facts he verily believe to be true and correct. DW4 deposed that he is conversant with the facts herein and has the authority of the defendant to depose to this affidavit. That at or about 4.00 pm on the 25th March 2011, the defendant instructed him to serve a document entitled Query on Mr. Binos Dauda Yaroe, the claimant in this suit. That at or about 5.00 pm on the 25th March 2011, he was at the claimant’s residence located at 1004 Apartments, Victoria Island, Lagos State to deliver the Query to him but he was not given access to deliver the said document to him. That he stayed in front of the claimant’s residence from at or about 5.00 pm to or about 11.00 pm on the 25th March 2011 and was unable to gain access to deliver the document to the claimant. Also that again at about 12.00 noon on the 26/3/2011 he was at the claimant’s residence at 1004 Apartments, Victoria Island, Lagos State to deliver the said document to him. That again at or about 9.00 pm on the 26th March 2011 he was at the claimant’s residence at 1004 Apartments, Victoria Island, Lagos State to serve him with the said document. That again at about 9.00 am on the 27th March 2011, he was at the claimant’s residence at 1004 Apartments, Victoria Island, Lagos State to serve the Query on him but he was not given access to serve him with the said document. That finally at about 8.15 pm on the 28 March 2011, he was able to serve the query on the claimant in his office on the 8th floor of the Stock Exchange Building and the claimant acknowledged receipt of same in the log/dispatch book kept for that purpose. That he reported to the defendant all the efforts he made to serve the query on the claimant. Under cross-examination, DW4 agreed that the claimant lived in a Block of flats. DW4 said he does not know the number of people who lived there. He also said he did not call the claimant to say he was coming to his house and so the claimant was not expecting him. DW4 also agreed that he was not in a position to know whether the claimant was in the house since he did not enter into the house. He said the 25th day of March 2011 was a Friday. DW4 said the next working day was the day he served him with a letter from the Interim Administrator of the defendant. He said he did not know the content of the letter because it was sealed. Under re-examination, DW4 said though he did not know the content of the letter but he was told it was a query. The next defendant’s witness is Tinuade Awe to be known as DW5. She swore by the Holy Bible to speak the truth. That she is a Legal Practitioner and that she works with the defendant. She adopted her witness statement on oath. She also relied on the documents listed in her witness statement on oath which are already admitted as exhibits in this case. DW5’s statement on oath is on all fours with the defendant’s amended statement of defence and counter claim and so I will not repeat it here. Under cross-examination by the claimant’s senior counsel, DW5 replied that she was not employed in the defendant under the management of Professor Okereke-Onyuike. DW5 says she was not a staff of Securities and Exchange Commission before her appointment with the defendant. She agreed that she was appointed by the Director General of SEC. DW5 agreed also that the Interim Administrator Mr. Ikazobor was appointed to head the defendant by the Director-General of SEC. She agreed that she has some familiarity with the employee handbook of the defendant. DW5 insisted that she stands by what she saw in paragraph 4 of her witness statement on oath. She said the misconduct of the claimant was deriving a benefit specifically shares which were purchased with funds of the defendant. She said her understanding is that this qualifies as a misconduct under the handbook, and it is liable to dismissal under the handbook. She also said her understanding is that the said shares were given to him by the Co-operative Society of the defendant and the Central Securities Clearing System (CSCS). She says she did not know if the said co-operative shares were given to the claimant under the authority of the Chief Executive of the defendant at that time. DW5 says it will still amount to misconduct liable to dismissal even if the shares were given to the claimant with the authority of the then, Chief Executive of the defendant. She denied knowledge of any regulations which prohibits allocation of Co-operative shares to any management staff. She says members of the co-operative society can take loans to buy shares or can be transferred shares. She says the claimant was not the only a management staff that was transferred shares to. She says she believe that the account department of the defendant keeps records of credits and debits of management staff’s transactions even though she is not responsible for that department. She denied that the Chief Executive can transfer shares purchased by the defendant to any management staff through the Co-operative Society. She says she was not a member of the co-operative society of the defendant when the claimant was in service or the Chairman. DW5 denied knowledge that Mr. Ikazobor was a member of the Co-operative Society. She says even now she cannot say who and who were members of the Co-operative Society when the claimant was a member. She agreed that she told the court that she complied strictly with the employee handbook to discipline the claimant. DW5 said they conducted audit into the books of Account of the defendant where they found the issue of allocation of Co-operative shares to the defendant. That as at the time of the audit, the claimant had not paid for the shares allocated to him. DW5 agreed that the accounts department kept records of dealings of management staff. That it was on the basis of their records that the interim Administrator queried the claimant. That there was no report prepared by them on the audit of the accounts of the defendant. She said she was not part of the officials who investigated the affairs of the defendant. DW5 said she was part of the inquiry unto the two vouchers dealing with money taken out of the exchange to purchase Dangote Flour Mills shares and Great Nigeria Insurance shares, she says she was involved in the inquiry unto these two transactions only. She says she was not a member of any audit committee. She agreed that there was an inquiry unto shares dealings which she was involved, she said she sought the assistance of the head of finance department, that she also sought the assistance of DW2. She also said she wrote letters to about three stock brokers which she spoke with two of them. DW5 also responded that her inquiry did not show that the allocation of the shares was done on the authority of the then Director General of the defendant. She agreed that Professor Okereke-Onyuike the then Director-General was one of the allotees of the shares. She agreed that there were other management staff also allotted the Dangote Flour shares. DW5 says she did not personally know Mr. Henry Onyekum, but he was a management staff of the defendant. DW5 says she did not also know Mr. Musa Elakama personally but she knows he was a management staff of the defendant. She says she did not also personally know Mrs. Yinka Idowu but she is aware she was a management staff of the defendant. She said there was no report produced as a result of the inquiry unto the co-operative society shares. DW5 said she is not aware that any of the persons named challenged the interim report on the issue of co-operative shares. She agreed that the claimant was suspended after the reply of his query. That the claimant was not suspended pursuant to the provisions of Article 59 paragraph 5.2 of the employee Handbook management staff of the defendant. DW5 responded further that the claimant was suspended under Article 59 read as a whole. She denied knowledge of any other investigation carried out by the defendant after the claimant was suspended. DW5 said she was the Secretary of the Finance and General purpose committee that heard his appeal against his dismissal. That the committee made recommendations as regards his appeal for dismissal. That the committee made recommendations as regards his appeal for dismissal to council. She said the Interim Administrator made oral representation before the committee asked the Interim Administrator whether he conducted further investigation after suspending the claimant before his dismissal. That she cannot recall whether the Finance & General Purpose Committee. She said the Interim Administrator did not submit any report as to whether or not he conducted this inquiry before dismissal of the claimant. That it was the Interim Administrator who ordered the queries to be issued to the claimant. That the claimant’s reply of the query was also delivered to the Interim Administrator. She agreed that the Interim Administrator determined that the claimant should go on suspension. That the suspension was without pay. DW5 also agreed that the Interim Administrator carried out the dismissal of the claimant. DW5 also responded that as at that time the claimant was the most senior management staff of the defendant apart from the Interim Administrator. She said she did not know whether as the General Manager he was appointed by the council of the defendant. She agreed that she is the head of Legal and Regulation Division as well as Council Secretary. She agreed that it is the council that has the responsibility to appoint the Chief Executive Officer and certain levels of senior management staff. That as General Manager at that time, the claimant was appointed by the Council of the exchange. DW5 also agreed that the Interim Administrator was also the Substantive Chairman of the Finance and General Purpose Committee. She says she was and still the Secretary of the Finance and General Purpose Committee as well as Secretary to the Council. She said she did not participate in the decision of the Finance and General Purpose Committee that decided the dismissal of the claimant. She said she was present all through the meeting that determined the dismissal of the claimant, while the Interim Administrator was present at certain times and the claimant was also present. She also agreed that the Interim Administrator came back to continue the meeting after the claimant had gone to consider other issues on the agenda. DW5 agreed that she and the Interim Administrator were present at council meeting when the report of the Finance and General Purpose Committee on the dismissal of the claimant was presented. DW5 responded also that there was no contract of leasehold between the claimant and the defendant on the Prado Jeep officially allocated to him. She said there was a letter asking the claimant to surrender all the defendant’s properties in his possession that includes the Prado Jeep. But that there was no option given that failure to deliver the Jeep he would pay leasehold or rentals. DW5 says she did not personally write to the claimant in respect of the above. She says she is not aware of any provisions in the staff handbook to the effect that any dismissed staff who refuses to release his official vehicle will pay rentals. She also denied that the claimant had changed ownership of the Prado Jeep in his possession. That the effect of a dismissal order is that such a staff is not entitled to any benefits. DW5 also agreed that the claimant has served the defendant for about fourteen years. She also said staff who owe Cooperative Society pay through their emoluments deducted at source. She also said there was no letter written by the defendant to the claimant asking him to come and pay for the shares he was allegedly owing before his dismissal. DW5 said the substantive CEO/Director General was appointed effective from 4th April 2011. Under re-examination, DW5 said the Jeep is still with the claimant. She said the shares of Dangote Flour Mills have not been paid. That there were six members of the Finance and General Purpose Committee. That the council of the defendant had 17 members. That there was investigation before the suspension. The defendant thereafter closed its case. Parties were then ordered to file their respective final written addresses as per the provision of Order 19 Rule 13 of the NIC Rules 2007 beginning with the defendant. The defendant’s counsel filed his written address on behalf of the defendant. The said written address is dated 3rd June, 2013 but filed on 4th June, 2013. The defendant’s counsel raised four issues for determination:- (1) Whether the claimant’s dismissal by the defendant (SIC) unlawful. (2) Whether the claimant was given a fair hearing before his employment was terminated. (3) Whether the defendant in entitled to judgment as per its counter claim. Arguing his case, the defendant’s counsel segmented and styled his submission and his argument into subheading as follows: UNFAIR DISMISSAL The defendant’s counsel submitted on this that under the Nigerian Law an employer can terminate for good cause, bad cause or no cause at all. That except where the contract of service has statutory flavor, the law will not foist a willing employee on an unwilling employer. That motive of an employer to lawfully terminate the appointment of his servant is irrelevant in the determination of an action by the employee for breach of contract of employment. That the courts have held in several cases that no servant can be imposed by the court on an unwilling master even where the master’s behavior or motive for getting rid of the worker is wrongful, unfounded or unjustifiable. To counsel, in cases where the employee can prove that his employment has been wrongfully terminated the remedies available to him will be dependent on the contract of employment. That all the court could do in such situation is to award appropriate damages, if need be and nothing more referring the court to CBN v. Maurice Eso Archibong [2001] NWLR 492 at 508 (not complete citation). That what constitutes appropriate damages has been settled by a number of cases which sets out that appropriate damages is the period of notice an employee is entitled to in his contract of service. That in this case the defendant is a provide (SIC) company limited by guarantee and so the claimant’s employment is not with statutory flavor since the defendant is not a statutory body. The defendant counsel continued that damages are always the only available remedy for wrongful termination of a contract of employment, citing W.N.D.C. v. Abimbola [1966] NWLR 381, Bello v. NEPA [1978] 1 LFN 200. Therefore if the court finds in favour of the claimant, counsel argued that the only relief the claimant can be entitled to is his terminal benefits and salary in lieu of notice as stated in the contract of employment. DISMISSAL Under this subhead, the defendant’s counsel submitted that dismissal is the assertion of a right of an employer to terminate a contract without notice or payment of salary in lieu of notice. That the employer terminates the contract without the payment of the employee’s entitlements. That dismissal usually connotes the exercise by an employer of a right to terminate a contract of employment on account of some misconduct on the part of the employee. To counsel, it is trite that where an employee is guilty of gross misconduct and this has been defined as conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employer or working against deep interest of the employer he could be unlawfully dismissed summarily without notice and without wages, citing UBN Ltd v. Ogboh [1995] 2 NWLR (pt. 380) at 669, Boston Deep Sea Fishing Co. v. Ansell [1988] 39 Ch. D 339, Babatunde Ajayi v. Texaco Nigeria Ltd & Ors [1987] 3 NWLR (pt. 62) 577 and Ridge v. Baldwin [1963] 2 All ER 66 at 71. To counsel this common law formation is part of the received English Law in Nigeria. That categories of conduct which may entitle an employer to summary dismissal are fairly well established. This include cases of gross misconduct, incompetence of the employee in a professional skill, willful disobedience of lawful orders, conduct incompatible with the good faith and falsely obligation of the employee to his master’s business. That in summary dismissal cases, the courts will insist on the observance of the rules of natural justice by the employer. And this is because in summary dismissal cases the servant is dismissed without being paid his entitlements. Therefore the court will impose a strict test in determining whether the dismissal is lawful. That the court will also insist that the employee be given a fair hearing before he is summarily dismissed, citing Oyedele v. University of Ife Teaching Hospital Management Board [1990] 6 NWLR 194 (incomplete citation), Maja v. Stocco [1996] NWLR 372 (incorrect citation). PROOF OF UNFAIR DISMISSAL The defendant’s counsel submitted that the onus of proof in Nigeria lies on the employee who complains that his employment has been wrongfully terminated. That such an employee has the onus to (a) place before the court the terms of the contract of employment and (b) to prove in what manner the said terms where (SIC) by the employer. That it is not in principle for the employer who is a defendant to an action brought by the employee to prove any of those, citing Emmanuel Iwuchukwu v. Eng. David Nwizu & Ors [1994] 7 NWLR (pt. 357) 379. To counsel, the claimant was dismissed pursuant to cause (SIC) 49 (6) of the defendant’s handbook. That the handbook provides for summary dismissal for serious misconduct. That it is clear from the facts of this case that the claimant appropriated monies belonging to the defendant for his own use. Also that he has failed up to the present time to repay these monies. That the claimant has failed to provide any cogent explanation or defence to the weighty allegation against him. That his only attempt at a defence is that the defendant used matters that form part of a Forensic Report as the basis for the query issued to him. That he has however failed to produce this report to the court. Learned Counsel submitted that even if the court were inclined to agree with him that the defendant was enjoined by a court order not to make use of matters contained in the said Forensic Report, his refusal and or inability to produce the report for the inspection of the court is fatal to his case. That in the absence of the report, this court is unable to inspect the said report to confirm if indeed the defendant acted in breach of a court order. To counsel, in light of the foregoing submitted that the claimant’s reliance on this report and a purported breach by the defendant of a court order is a mere ruse designed to steal attention away from his despicable and gross misconduct. The defendant’s counsel submitted that it has been proved that the claimant herein has committed a fraud on the defendant and the claimant’s dismissal was in compliance with article 59 of the Employee Handbook. That in trying to defend his indefensible actions the claimant has tried in his evidence before the court, to set up spurious defences which are not even supported by his pleadings. Specifically that the claimant has claimed that he had the consent and permission of the former Director-General of the defendant to appropriate these monies to himself. That the claimant has not provided any evidence either from the Employee Handbook or the defendant’s Memorandum and Articles of Association to support his contention that the former Director-General had such wide powers. Also that the claimant has not provided any evidence whatsoever of any loans or any terms of the said loan since DW1 testified that the process for obtaining a loan is by application. That the claimant had not contradicted or challenged this piece of evidence. The defendant’s counsel also submitted that the claimant under cross examination claimed that payment for the shares may have been deducted from his salary however he failed to provide any evidence of these phantom deductions. That the claimant admitted under cross examination that if any deductions to his salary had been made by the defendant from his salary it would be evidence from his bank statements and thereafter claimed that he did not have access to his own bank accounts to confirm if the said deductions were indeed made. To counsel, this is a ridiculous and outlandish claim to be made by the claimant, even judged by the standards of this claimant who has made ridiculous claims, it is clear from his evidence that no deductions were made from his salary. Indeed that if any such deductions were made he would not need any invitation to produce his bank accounts in proof of this. That this piece of evidence if true would provide him with an almost complete defence to the allegations against him. The defendant’s counsel submitted that no deductions were made from the claimant’s salary as the claimant never paid for the shares and he never intended to pay for the shares. The defendant’s counsel submitted that where a party claims to have evidence in his possession which is not produced before the court, the court will draw the influence that if the evidence were produced it would be unfavourable to the party in whose possession the evidence is. Learned Counsel referred to Section 167 (d) of the Evidence Act 2011 which provides that: “The court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular he (SIC) court may presume that – (d) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.” Learned Counsel also referred the court to Section 140 of the Evidence Act which states that: “when a fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” Counsel urged the court to discountenance these claims which are also not supported by his pleadings. That it is settled law that evidence led which is not supported by the pleadings goes to no issue. That the handbook does not prescribe any length of notice to be given in cases like these. And that he had thus failed to show how his dismissal was in breach of the procedure laid down in the handbook. MEASURE OF DAMAGES The defendant’s counsel submitted that even if the claimant can prove that there was a wrongful dismissal, the measure of damages is well settled. That the Court of Appeal in B.S. Onalaja v. African Petroleum Ltd [1991] 6 NWLR (pt. 198) 492 stated that: “The measure of damages in cases of wrongful dismissal is always the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment and not salaries up to retirement age. If no period of notice was prescribed then the common law rule will apply, namely that a responsible period would be given usually one month or three months depending on the category of staff being dismissed.” That the Supreme Court in Katto v. CBN [1999] 6 NWLR (pt. 607) at 235 stated that: “In ordinary contract of employment where the terms provide for one month’s notice before termination or salary in lieu thereof, the only remedy an employee, who is wrongfully terminated can get is a month’s salary in lieu of notice and any other legitimate entitlement due to him at any time they (SIC) employment was brought to an end.” Furthermore that the Supreme Court in Western Nigeria Development Corp. v. Abimbola [1966] 4 NSCC 172 held that: “where an employee is wrongfully dismissed based on a false accusation of misconduct without being given any notice or salaries in lieu of notice, his remedy lies in an action for the amount of salaries he would have received during the period of notice and not for reinstatement.” FAIR HEARING The second issue for determination relates to that of fair hearing. The defendant’s counsel submitted that the claimant has contended that he was deprived of fair hearing because as he claimed he was not given adequate notice of the case against him. That the basic criteria and attributes of fair hearing include (a) that the court or Tribunal shall hear both sides not only in the case before reaching a decision which may be prejudicial to any party in the case (b) that the Court or Tribunal shall give equal treatment, opportunity and consideration to all concerned (c) that the proceedings shall be heard in public and all concerned shall have access to and be informed of such a place of public hearing and (d) that having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done, citing Kotoye v. Central Bank of Nigeria [1987] 1 NWLR (pt. 98) 419, Adigun v. A.G. Oyo State [1987] 1 NWLR (pt. 530 678. To counsel, fair hearing is opportunity given to a party to present its case. That to satisfy the rule of fair hearing, a person likely to be directly affected by disciplinary proceedings must be given adequate notice of the allegation against him to enable him make a representation in his own defence. That it is sufficient if the complaint conveys to him the nature of the accusation against him, citing Yusuf v. Union Bank Nig. Ltd. [1996] 6 NWLR (pt. 457) 632, PHCN v. Alabi [2010] 21 NLLR (pt. 58) 1. Also that this court has in the case of Metal Senior Staff Association of Nigeria v. Management of Metal Construction Ltd., Suit No. NIC/7/85 (incomplete and incorrect name of case) where according to the defendant’s counsel, this court held that a worker does not require more than two to three hours to give a written reply to a query. That in this case the claimant was given a notice time of seven hours. That even when he did respond he chose not to deal with any of the allegations directly, instead accusing the disciplinary committee of malice. That the claimant did not ask for more time to respond in any of his responses. The defendant’s counsel also submitted that applying the above cases, the claimant was given adequate notice to respond to the allegations against him. Also that he appealed to the council and was given the opportunity to present his case. That as far as the council’s decision is concerned, he participated fully in the hearing and did not raise any issue as to a lack of fair hearing at the time. Further that there were several other members on the council besides Mr. Ikazobor. AUTHORITY TO DISMISS On issue three, the defendant’s counsel submitted that the only evidence provided by the claimant is that extracted from DW3 under cross examination that only the council can appoint and remove management staff. Counsel submitted that the Employee Handbook which is binding on the claimant does not say so. That in fact the words used in the handbook especially under Articles 49 and 59 is “The Exchange”. That it is thus “The Exchange” that has the power to appoint and dismiss management staff. That the Exchange is a company and it is trite that a company’s Managing Director or Head of its Management can exercise powers on behalf of the company. That Article 59 (a) (d) expressly provides that the management shall have the final authority to decide on disciplinary cases involving employees. That besides, the claimant appealed against his dismissal to the council which ratified and confirmed the decision of the then Interim Administrator. That so the claimant submitted to the jurisdiction of the council and cannot now be heard to claim otherwise. COUNTER CLAIM That the defendant had proved its counter claim to the effect that the claimant has failed and or refused to return the defendant’s motor vehicle, a Toyota Prado Land Cruiser car. The defendant’s counsel urged the court to give judgment as per the defendant’s claim in the counter claim. Concluding its submission, the defendant urged the court to dismiss the claimant’s claims because – (1) The claimant converted funds belonging to the defendant to himself. (2) The claimant was given sufficient notice to defend himself and could not, come up with any justification for his actions. (3) That a wrong doer should not be rewarded for his wrong doing. That the claimant has still not repaid any of the funds he converted. (4) That the claimant took advantage of the alternative dispute resolution process contained in the employee handbook by appealing to the council of the defendant and that he ought to be bound by the council’s decision. (5) That the court should not set aside the letter of dismissal. That in the unlikely event that this court holds that his dismissal was in breach of his contract of employment the relief available to him is damages for breach of contract and that the quantum of damages is the period of notice contained in his contract of employment. (6) That the court will not reinstate an employee to his employment where the employer is unwilling to employ him. On the other hand, the claimant’s written address was dated 19th July, 2013 but filed on the 22nd July, 2013. The senior counsel for the claimant raised three issues for determination to wit: (1) Whether the dismissal of the claimant was lawful and valid in law. (2) Whether the Interim Administrator has the power and legal authority to dismiss the claimant on 8th April, 2011 when his tenure had lapsed on the 4th April, 2011 and a new Director-General/CEO had taken over on the 4th April, 2011. (3) Whether the defendant’s counter claim is valid and sustainable in law. On issue one, the senior counsel for the claimant submitted that the claimant’s dismissal was unlawful, invalid, null and void and urged the court to so hold. That the evidence before the court shows that the defendant is a private limited liability company, limited by guarantee. That the Memorandum and Articles of Association is in law the constitution of the company binding on all persons exercising powers of any sort in relation to the company citing Section 33 of CAMA 1990. That the Securities and Exchange Commission not being the council of the defendant cannot exercise any power conferred on the council by the constitution, therefore the Interim Administrator appointed by the Securities and Exchange Commission (SEC) is without any power under the constitution and it is to that extent null and void. Learned Senior Counsel referred to the decision of the Federal High Court in Prof. Okereke-Onyuike v. Nigerian Stock Exchange & Anor. Suit NO. FHC/L/CS/963/2011 delivered on 20th May, 2011 where the Federal High Court declared the action of SEC in removing the Director-General of the defendant and the appointment of one Emmanuel Ikazobor as Interim Administrator of the defendant as illegal, null and void. Submitting therefore that since the appointment of the Interim Administrator follows the nullification of the removal of the Director-General of the defendant, it had no root in the constitution of the defendant and so it is illegal, null and void and that when an act is void, it is regarded as non-existing, it is as if it never existed. To counsel, it is trite law that a nullity begets a nullity. That in the case of UAC v. Mcfoy [1961] 8 ALL ELR 1477, Lord Denning was quoted as saying that when an act is void, it is void altogether and nothing can be placed on it. That the defendant in its defence stated that its council ratified the appointment of the Interim Administrator. That the defendant cannot ratify an act which is illegal and contrary to its constitution. That a critical examination of the entire constitution of the defendant shows that there is no provision for Interim Administrator and or its ratification. To counsel, the defendant has not led any scintilla of evidence to show any of such ratification but a bare assertion that there was ratification. The claimant’s counsel submitted that he who asserts must prove, citing Union Bank of Nigeria Plc v. Ishola [2002] FWLR (pt. 100) 1253 at 1276. Where the Court of Appeal held that “he who asserts must provide the evidence in proof of the assertion.” Learned Counsel urged the court to note in particular that on this matter, no minutes of meeting of the Council has been produced to show the said ratification. That no oral evidence can substitute the content of the minutes of the company kept by its secretary. That the Interim Administrator acted illegally and everything he did remain illegal, null and void. That the law is that when an act is a nullity, the party affected cannot assume or regard it as a nullity. That it is proper to take judicial proceeding to formally set it aside which is the purpose of this suit. Further, that in law an act which is a nullity cannot be ratified. It is an act that is dead, it is dead forever and so if the court finds favour with this submission, it then means that the dismissal never existed, citing the case of Adeoye v. State [1999] 6 NWLR (pt. 607) 74 at 92 where it was held that: “where an act is void and a nullity, it is unnecessary for the person concerned by the act to apply to have it set aside because no legal effect results from such an act. It is the duty of the court where the nullity has been brought to its notice to declare as a nullity the proceedings for either want of jurisdiction or contravention of constitutional or other statutory requirements.” On Article 12 of the defendant’s Memorandum and Article of Association (i.e. Exhibit 15), the claimant’s counsel submitted that the illegality and unlawfulness of the defendant’s alleged dismissal of the claimant through the said Interim Administrator’s letter of 8th April, 2011 was brought to the fore by the express provision of Article 12 (1) of the Memorandum and Article of Association of the defendant i.e. Exhibit 15. It provides how the defendant’s Chief Executive must be appointed, by whom must the Chief Executive Officer be appointed, the appellation of the Chief Executive Officer and that the so called appointment of Mr. Emmanuel Ikazobor as Interim Administrator by a body other than the Council is null and void and it therefore follows that everything that flows from him goes to no issue and amounts to nullity. On the disciplinary procedure adopted, the claimant’s submission is that even if the dismissal was valid and legal, the procedure followed in the dismissal of the claimant did not follow the conditions provided by the Employee Handbook (Management Staff) Exhibit Yaroe 1. That the law is that employers and employees are bound by the conditions of service which is part of the contract documents of employment. That Exhibit Yaroe categorized misconduct into 3 categories. The misconduct to justify dismissal are specific and clearly defined, they are contained in Article 59 (5) provides as follows: DISCIPLINARY PROCEDURE: (4) categories of misconducts: “In order that the disciplinary measures to be applied can be seen to be equitable with the nature of the magnitude of the misconduct on the part of the employee, the exchange shall categorize misdemeanors, offences or misconducts as follows: (5) CATEGORY “A” (i) Stealing or aiding and abetting same (ii) Fraud or aiding and abetting same (iii) Falsification of records or aiding and abetting same (iv) Divulging confidential information (v) Drunkenness or use of narcotics (vi) Deliberate refusal to work (vii) Corruption or attempted corruption (viii) Malicious damage to the Exchange’s property (ix) Conviction for a criminal offence (x) Unauthorized possession of fire arms in the work place (xi) Subversive activity (xii) Gross insubordination (xiii) Dereliction of duty (xiv) Fighting or assault (5.1) Any management staff who is found guilty of any of the foregoing offences shall be summarily dismissed from the service of the Exchange. (5.2) A management staff against whom any of the foregoing offences is merely alleged shall be placed on suspension with half salary to allow for further thorough investigation to fully determine the role of the said staff. If the management staff is declared innocent in the end he shall be paid the balance of his salary retrospectively, but if found guilty he shall be dismissed from the service of the Exchange. The claimant’s counsel submitted that any misconduct not mentioned in the list or specifically named, is expressly excluded. The law is that what is expressly stated, excludes all others not mentioned. Referring to Elijah Amehokewu v. FRN [2005] All FWLR pt. 254 @ 858 at 872 where it was held: “The principle comprised in the maxim expression unis est exclusion alterius – means that the express mention of one excludes any other which otherwise would have applied by implication with regards to the same issue.” Counsel also cited the following authorities: Buhari v. Yusuf [2003] FWLR (pt. 174) 329, Agabia v. A.G Federation [2005] All FWLR pt. 275 at 414 at 452, A.G Ondo State v. A.G Ekiti State [2001] FWLR pt. 79; 1431 and SEC v. Kasunmu SAN [2009] 10 NWLR (pt. 1150) 509 at 537. Learned Senior Counsel submitted that the dismissal of the claimant had no foundation or not in the Employees Handbook Exh. Yaroe 1. That the query dated 25th March, 2011 relates to sale of shares of Great Nigerian Insurance Plc and Dangote Flour Mills. That to sell, to buy, to pay or not pay for the shares is not one of the 14 items of misconduct punishable with dismissal. To counsel, the law is that when a regulation, including conditions of service for employee, is made which affects, restricts or takes away the right of citizens, such laws must be strictly interpreted and any doubt shall be resolved in favour of the employee, citing Eze v. Gov. of Abia State [2010] 15 NWLR (pt. 1216) 324, Chief Joseph Okotie-Eboh v. Chief Ebiowo Manager [2004] 18 NWLR (pt. 905) 242 at 282, Afolabi v. Gov. of Oyo State [1985] 2 NWLR (pt. 9) 734 where the Supreme Court held that: “a statute which encroaches on the rights of the subjects whether in relation to his person and is subject to a strict construction that all respect such rights and any ambiguity in the statute is usually resolved in favour of the rights and freedom of the individual.” The claimant’s counsel submitted that the claimant’s dismissal for an unknown misconduct or an offence not provided for or covered by the employees handbook is a grave violation of the claimant’s rights to fair hearing. That it was a situation where the Interim Administrator deliberately created his own offence or misconduct just to catch the claimant and get rid of him from the defendant’s employment. Counsel cited Section 36 (8) of the 1999 Constitution which states: “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence….” And Section 36 (12) of the 1999 Constitution of the FRN which further provides that: “Subject as otherwise provided by the constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof is prescribed in a written law, and in this sub-section, a written law of a state, any subsidiary legislation or instrument under the provisions of a law.” To counsel, the basis of this constitutional provision is to secure and entrench the right of fair hearing and ensure justice to all persons in accordance with the principles of natural justice. That this principle of fair hearing is universal and applicable to this case, meaning that the defendant’s Interim Administrator acted without authority when he dismissed the claimant for a conduct which was not misconduct or an offence in the Employee Handbook. That it is an act clearly outside the provisions of the conditions of service in the Handbook. That assuming without conceding that the claimant was dismissed within the ambit of the offences prescribed for dismissal in the Handbook, the question will be whether the stipulated procedures for taking such terminal disciplinary action were complied with. On this the claimant submitted that the defendant departed violently from the procedures laid down in Exhibit Yaroe 1 for dismissing a management staff. As regards the procedure for dismissing a management staff, Learned Senior Counsel to the claimant invited the attention of the court to Article 59 (5.1) (5.2) of Exhibit Yaroe 1 which states as follows: 5.1 “Any management staff who is found guilty of any of the foregoing offences shall be summarily dismissed from the service of the exchange.” 5.2 “A management staff against whom any of the foregoing offences is merely alleged shall be placed on suspension with half salary to allow for further thorough investigation to fully determine the role of the said staff. If the management staff is declared innocent in the end he shall be paid the balance of his salary retrospectively, but if found guilty he shall be dismissed from the service of the Exchange.” Learned Counsel therefore submitted that before the claimant or any management staff for that matter can be dismissed from the above provisions, the following must be done by the Council: (i) He must have been found guilty of any of the offences listed under Article 59 (5); (ii) If suspended, it must be with half salary (iii) Upon suspension, there must be further thorough investigation to fully determine the role of the said staff. That from the evidence placed before this court by the defendant there is no single place or item that pointed to the fact that the claimant was found guilty by the defendant or by anybody or authority in so far as it relates to this case and that this is the mandatory requirement of Exhibit Yaroe 1 in both Articles 49 and 59. Furthermore, that the suspension of the claimant was an act of gross impunity in that the claimant was suspended without pay. That the claimant who received the query at about 12 noon on Monday, 28th March 2011, responded the same day at about 3 pm asking for more time to enable him to respond properly amount other things was suspended indefinitely without pay and with immediate effect and until further notice, the next day being 29th March 2011. That DW3 under cross examination agreed that – “It is true that any management staff that is accused of misconduct in the handbook is liable to be suspended with half pay. The suspension is to allow for thorough investigation of the allegation.” To counsel, the failure to put the claimant on suspension with half pay is a gross violation of the defendant’s own handbook – Exhibit Yaroe 1 as there was no further investigation to establish the liability or culpability of the claimant before dismissal. Also claimant’s Senior Counsel submitted that no evidence was led either oral or documentary to show that “further thorough investigation to fully determine the role of the said staff” i.e. the claimant was carried out. That in fact, the defendant’s Company Secretary/Legal Adviser Ms Tinu Awe who gave evidence as DW5 responded that she did not know if further investigation was carried out after the claimant’s suspension. That DW5 also said she did not know when asked further if Mr. Ikazobor the Interim Administrator made further investigation after suspending the claimant before his dismissal. That DW5 also said in response that Mr. Ikazobor did not conduct further enquiries into the claimant’s affairs before he dismissed him. The claimant’s counsel pointed out that it is imperative to show that DW5 Ms Tinu Awe was at the relevant time the coordinator of the body of enquiry into the share transfer issues allegedly by involving the claimant. That when asked under cross examination whether she coordinated the search into the book of account of the defendant where discoveries of Transaction involving the allegation of transfer of shares to the claimant, she answered that it is correct. That when asked also what role she played in discovering the share dealing, she agreed she was part of the enquiry into the voucher that dealt in share dealings/allotment and that there was an interim report. That DW5 was the Ag. Secretary/Legal Adviser to the defendant. That DW3, a Deputy Manager also in response to a question said in corroboration of the need for further thorough investigation upon suspension said: “The suspension is to allow for thorough investigation of the allegation.” Learned Counsel therefore posited that it is crystal clear from the litany of evidence and documents before the court that there was no “further thorough investigation” into the issues that led to the suspension of the claimant before he was dismissed and that this is a breach of the mandatory provision of the Exhibit Yaroe 1. Counsel therefore submitted that the above listed conditions are mandatory conditions precedent which must be fulfilled before any management staff can be lawfully dismissed and so the defendant deviated and violated the well structured and defined disciplinary procedures laid down in Exhibit Yaroe 1 before dismissing the claimant by not finding the claimant guilty, suspended him without half salary and carrying out further thorough investigation after suspending him before his dismissal and that this non compliance is fatal and renders the dismissal illegal and unlawful. The claimant’s counsel further submitted that coupled with the above established irregularities is the fact that it was the said Interim Administrator that dismissed the claimant by fiat in the said letter of dismissal i.e. Exhibit Yaroe 9. That the dismissal was without any reference to the council which is empowered to carry out such disciplinary action. That this fact was supported by DW3 who is a Deputy Manager Human Resources of the defendant who under cross examination said: “It is true that management staff can only be appointed and removed by the council of the defendant.” This fact was also corroborated by DW5 under cross examination. To counsel based on the evidence of DW3 and DW5 it is clear that the Interim Administrator who single-handedly dismissed the claimant, a management staff lacked the powers to do so, because he exercised the power that he did not have, therefore his purported action is a nullity in law. The claimant’s counsel also submitted that in dismissing the claimant, the defendant was mandatorily bound to comply with the terms and conditions of the contract, referring to Olarewaju v. Afribank Nig Plc [2001] 13 NWLR (pt. 731) 691 at 712. Furthermore, the claimant’s counsel submitted that the said breach of procedure led to the violation of the claimant’s right to fair hearing. That Article 59 Disciplinary Procedure 8 (9) of the Employees Handbook Exhibit Yaroe 1 states as follows: “Notwithstanding the category of misconduct the Exchange shall adhere to the principle of natural justice.” That in appreciation of the age long principle of natural justice and as readily enshrined in our constitution by Section 36, the defendant wisely by its Article 59 (8) mandatorily embedded the above as part of his disciplinary procedure. That the twin pillar of natural justice is encapsulated in the Latin maxim of: (i) Andi alteram partem – hear the other party. (ii) Nemo judex in causa sua: do not be a judge in your own cause. Counsel submitted that the defendant breached both principles with reckless abandon and impunity in the process of dismissing the claimant. To counsel, the procedure leading to the dismissal of the claimant was in violation of the rules of fair hearing. That fair hearing involves the right of the person accused of wrong doing to know his accusers, the evidence against him and the right to defend himself against all the accusations. That in the claimant’s letter of 28 March, 2011 as his defence to the query, the claimant indicated that he had never seen the interim report of the forensic audit which was the source of the allegation. That under cross examination, it was established that the claimant was never part of the initiative of the forensic audit. Also that he was not a member of the Audit Committee. That the report of the committee was not circulated for the study of the claimant and the opportunity for him to answer the allegation of non-payment of the shares allocated to him. Also that the defendant has the duty to make available a copy of the report to enable the claimant as a person to be disciplined, to react in response and defence of the allegation against him. Continuing, the claimant’s counsel further submitted that the query letter being served on the complaint at about 12 noon on 28th March, 2011 and was mandated to respond to it before 12 noon. That the claimant who realized that the issues raised in the said query borders on: (i) Issues that are pending before court of law and therefore subjudice, (ii) Some of the issues happened over five years before then and would require more time to enable him answer properly and (iii) That there are malice on the part of the Interim Administrator who ordered the query to be issued. That the claimant drew the attention of the Interim Administrator to these issues in his response that he had to give within three hours. That by the next day, 29th March 2011, the claimant was suspended indefinitely with immediate effect and without pay contrary to the Handbook’s procedure. That all the reason for such suspension was never brought to notice of the claimant. That the defendant purportedly continued to investigate the claimant while he was on suspension and yet, he was never invited before any panel or body to answer to any allegation raised against him whether by the defendant or by any other person(s) and both orally or by documents. And what followed was the dismissal of the claimant by 8th April, 2011 without any hearing as well i.e. that 13 years career was brought to an end within 10days i.e. from 28th March, 2011 – 8th April, 2011. Counsel thereafter submitted that the claimant was dismissed unheard and the principles of andi alteram partem was violated and was deprived of the opportunity of confronting witnesses either orally or by written representation. He referred to Denloye v. Medical & Dental Practitioners Disciplinary Committee [1968] 1 ALL NLR 306 and Garba & Ors v. University of Maiduguri, 2 NPILR 50. Learned Senior Counsel also referred to Aiyetan v. NIFOR [1987] 3 NWLR (pt. 59) 66 where it was declared: “thus … a person liable to be directly affected by proposed administrative acts, decisions or proceedings or against whom disciplinary action is proposed must be clearly informed of the allegations against him and be given opportunity to answer those allegations or charges before action is taken against him. An employer, before dismissing his employee, must satisfy the requirements of fair hearing and so, must ensure that from all the circumstances of the case, the allegations against such employee are sufficiently brought to his notice and adequate time given to such employee to reply to those allegations.” To counsel, from the totality of the evidence adduced by the claimant in this case, the claimant was not given adequate time to prepare for the case against him, that he was given barely 3 hours to respond to allegation that spanned over five years, and the next day he was suspended with immediate effect and indefinitely without pay and without further recourse to him, he was dismissed within ten days of his suspension, that this can only be travesty of fair hearing and justice. As regards the issue that the defendant was a Judge in its own case, the claimant’s senior counsel submitted that one significant feature of the procedure leading to the dismissal of the claimant is the overbearing role of the Interim Administrator, an appointee of the Securities and Exchange Commission. That to show this overbearing attitude, counsel listed it as follows: (i) The Interim Administrator alongside the Securities and Exchange Commission, commissioned the Forensic Audit, which was superintended by Ms Tinu Awe DW7. (ii) The Interim Administrator appointed members and fashioned their terms of reference. (iii) The Interim Administrator received the report and extracted the allegation concerning the claimant and instructed that the letter of query be issued. (iv) The Interim Administrator received the reply to the query from the claimant and decided suo motu that the claimant be suspended pending further investigation without pay, notwithstanding the obligation under the Employee Handbook for half pay. (v) The Interim Administrator conducted further investigation and was the judge who found the claimant guilty of offences deserving dismissal after 13 years of service without further hearing or opportunity of hearing from the claimant. (vi) The Interim Administrator was a member of the council that received the appeal regarding the claimant’s dismissal. (vii) The Interim Administrator ordered and decided that the claimant must be dismissed and he signed dismissal e-mail. (viii) The Interim Administrator was the Chairman of Finance and General Purpose Committee, the committee that the claimant’s appeal was referred to by the council and recommended that confirmation of the claimant’s dismissal. (ix) The Interim Administrator was part of the council that considers the report of Finance and General Purpose Committee’s recommendation for sustaining his dismissal of the claimant. (x) The Interim Administrator was everything, he was everywhere and therefore cannot but be guilty of bias of monumental height. The claimant’s counsel submitted that all these, violated the basic principle of nemo judex in causa sua, as according to counsel, he was the accuser, the investigator, the judge and the final decision maker. That under cross examination, the defendant’s star witness Ms Tinu Awe, who participated from conception of the case against the claimant to his dismissal to support the above assertion of undue and overbearing influence by the Interim Administrator, counsel referred to LPDCN v. Fawehinmi [1985] 2 NWLR (pt. 7) p. 300 where the Supreme Court held: “It is settled law a person cannot be a judge in his own cause. This is a principle of natural law of considerable antiquity. The person to decide the rights and obligations of two contending parties should not himself be a party to the lis where the judge is also a party to the lis, it violates the sacred maxim of nemo judex in causa sua …” Learned Counsel also cited Alakija v. Medical Disciplinary Committee [1959] NSCC, 20 where the Supreme Court per Abbott, F.J. held: “We are not prepared on the evidence before us to go so far as the ground of appeal does in saying that the Registrar actually took part in the committee’s deliberations, but his mere presence at the deliberations offends against the principle so frequently enunciated in recent cases, in which a clerk to petty sessions has retired as a matter of course with the members of the bench when they are considering their verdict, that justice must not only be done but must be manifestly seen to be done. We considered, therefore, that the principles of natural justice had, owing to the Registrar remaining with the committee during their deliberations, not been fully observed and we further held the view that this was a vital matter making the proceedings at the committee unsatisfactory. We therefore, held that the decision of the committee could not stand.” The claimant’s counsel therefore submitted that in the case at hand, wherein the Interim Administrator, who was the Chief Executive of the defendant at the relevant time, was shown to have expressed strong views/opinion on the claimant because he insisted that the claimant should resign against his will, the claimant was queried on the instructions of the Interim Administrator on the 28th March 2011, he suspended the claimant against all laid down rules and regulations on the 29th March 2011, he unilaterally dismissed the claimant on the 8th April 2011 even though his tenure has expired as Chief Executive Office since 4th April, 2011. That upon all these, the Interim Administrator still went ahead to participate in the determination of the career of the claimant right from appeal to the council of which he is a member to finance and General Purpose Committee which he chaired at the relevant time and back to the council. The claimant’s counsel on this finally urged the court to hold that all the procedure leading to the dismissal of the claimant ran contrary to the rules of fair hearing and rules of natural justice and thereby brought miscarriage of justice on the claimant. On issue two which is whether the Interim Administrator as at the 8th of April 2011, when he dismissed the claimant, an employee of the rank of General Manager has the vires to do so. On this, the Senior Counsel argued that there is evidence before the court that the tenure of the Interim Administrator ended with the appointment of the substantive Director-General and Chief Executive Officer, Mr. Oscar Onyema. That there is evidence before the court that the Director General/Chief Executive Officer resumed effective from 4th April, 2011. That this much was confirmed by DW3, a Deputy Manager Human Resources under cross examination as follows: “It is true that on the 4th April 2011 a new Chief Executive Officer/Director General was appointed. The new DG/CEO took over on the 4/4/2011.” Also that this position was equally supported by the defendant’s Annual Report and Accounts for 2010 presented at the AGM of 29th November, 2011 exhibit Yaroe 16, at page 16 at line 2. The claimant’s Senior Counsel in this wise submitted that only the Chief Executive Officer of the defendant has the power to initiate to the council, the dismissal of a management staff like the claimant, a General Manager, an officer next in rank to the Chief Executive Officer. That on the 8th April, 2011, four days after the assumption of office by the Chief Executive Officer of the defendant selected after a rigorous exercise, a usurper and indeed an interloper described as Interim Administrator purportedly and illegally too, authored a letter Exhibit Yaroe 9 (letter of dismissal) claiming to dismiss the claimant. Also that there was no evidence that the council of the defendant which was the highest decision making organ of the defendant authorized and approved the dismissal of the claimant on the 8th April, 2011. That this is because the Interim Administrator did not state in the so called letter of dismissal that he had been authorized by the council to dismiss the claimant but that rather he said: “You are hereby dismissed from the service of the Exchange with immediate effect”. That assuming without conceding that the Interim Administrator was to work with the new DG for the purposes of handing over as the defendant would want the court to believe, does not it suggest that the two of them will contemporaneously be exercising executive powers? i.e. a case of two Executive Offices? On this the Senior Counsel submitted that the dismissal of the number 2 man in the defendant i.e. the claimant could not have been part of handing over, as same being a serious executive action even goes beyond the Chief Executive Officer to the Council. That the exercise of executive power of dismissing the claimant four clear days after the expiration of his tenure, if any ultra vires his power and therefore null and void and liable to be set aside and urged the court to so hold. On issue three, the claimant’s counsel pointed out that in paragraph 51 of the amended statement of defence, the defendant alleged that it demanded for return of the Toyota Prado Jeep officially allocated to the claimant as a General Manager and that he refused to return it. To this the claimant’s counsel submitted that this claim is not sustainable because the dismissal of the claimant is still being challenged in court. That the claimant is entitled to hold on to the vehicle until the court determine the validity of the dismissal because when a matter is before the court, the court remains in full control of the matter and everything connected therewith until finally determined. That besides the letter of dismissal is not a letter of demand for the vehicle or a reminder to return the vehicle to justify a claim for conversion. That the demand must be clear as unequivocal and the refusal must also be clear and unequivocal. As regards the defendant’s claim for conversion, the claimant’s counsel submitted that conversion is a claim in torts and this court has no jurisdiction to entertain a claim of simple tort. That even if this court has jurisdiction, the claim of the defendant for conversion should be dismissed because in a tort of conversion, the claimant must plead and prove the following: (1) Wrongful taking possession of the object. (2) Wrongful ascertain of right over the object. (3) Refusal to deliver when demanded coupled with adverse claim over the chattel. That the claimant in this case lawfully came into possession and retained same bona fide as a staff of the defendant until the court determines his status. He never claimed ownership of the vehicle. Also that the claim for the value of the vehicle requires strict proof. That strict proof means the value of the vehicle at the date of claim by an expert in vehicle valuation. That this was not done by the defendant. The claimants counsel therefore urged the court to hold that there is no foundation for the counter claim and so urged the court to dismiss the claim for damages claimed by the defendant. The claimant’s counsel in conclusion urged the court to grant all the prayers of the claimant having established by credible and cogent evidence both oral and documentary that he is entitled to all his reliefs and do dismiss the counter claim of the defendant/counter claimant as same having not been established by any scintilla of evidence. The defendant’s counsel instead of filing a reply on points of law as directed by the court, filed what counsel described as “Defendant’s Reply” to claimants address. For the justice of the case this process named Defendant’s Reply will be treated as a Reply on points of law only in that wise anything contained in the said defendant’s Reply which is not a reply on points of law will accordingly be disregarded and will not be considered. The defendant’s counsel contended that the defendant denied in his defence all the claimant’s claims that the defendant’s actions were based on a forensic audit conducted by SEC on the claimant’s submission, that his misconduct was not specifically named, on this the defendant responded that what the claimant did amounted to corruption and stealing which are covered by the Employee Handbook. Also on the issue of the defendant being a judge in his own case, the defendant responded that the evidence before this court is that the Interim Administrator was not part of the council meeting that deliberated on the claimant’s case as he stepped down his position as a committee member when the claimant’s matter was being decided. As to whether the Interim Administrator could dismiss the claimant after his tenure had ended, the defendant submitted that it is clear from the pleadings and evidence led that the Interim Administrator remained firmly in charge of the day to day management of the defendant. That the claimant in his pleadings and evidence confirmed that the Interim Administrator was still responsible for the day to day management of the defendant and still exercised the powers of the CEO. The defendant urged the court to dismiss the claimant’s claims. Before considering the merit of this case, I need to say this, after parties had adopted their respective final addresses and the matter adjourned for judgment, it was discovered that the exhibit file was missing. After several efforts were made to locate it without success, the court informed all the counsel and directed them to re-file and exchange their own copies of the exhibits which both of them had frontloaded. This counsel did, and the said exhibits were re-filed by the parties via affidavits. Thereafter parties readopted their respective final written addresses because the ninety days prescribed by the 1999 Constitution of the Federal Republic of Nigeria for delivery of judgment had elapsed. Curiously while the judgment was in draft stage, the Registrar of this court informed me that the said exhibit file which was declared missing had been found. After going through it and ascertained that all the exhibits contained therein are the same as was earlier frontloaded and admitted in evidence, I thereafter considered and used the original exhibit file for the determination of this case. I have read and considered all the processes filed in this case along with oral submissions of Learned Counsel on both sides. I have also evaluated all the evidence and exhibits tendered in this case. Having done so, I have noticed that the issues raised for determination by both parties are substantially the same, in that wise I have harmonized them and frame the issues for determination in this case as follows: (1) Whether the claimant’s dismissal by the defendant is lawful and valid in law. (2) Whether the claimant was given fair hearing. (3) Whether the counter claim of the defendant is valid and sustainable in law. As regards the issue of whether the claimant’s dismissal by the defendant is lawful and valid in law, here the defendant’s contention is that it is valid. That under Nigerian law an employer can terminate for good cause, bad cause or no cause at all except where the contract of employment has statutory flavor and that this case is not one with statutory flavor and therefore the motive for termination is irrelevant so argued the defendant’s counsel, that re-instatement is therefore out of the way. The claimant on the other hand had through his counsel argued that his dismissal was unlawful, invalid, null and void because first of all the appointment of the Interim Administrator who purported to dismiss the claimant was nullified by the Federal High Court to the effect that the Securities and Exchange Commission had no power to appoint an Interim Administrator for the defendant. On this point I want to right away deal with this aspect of the claimant’s submission to the effect that the validity or otherwise of the appointment of the Interim Administrator had already been decided by the Federal High Court in Suit No. FHC/L/CS/963/2011 delivered on 20th May, 2011. The propriety or otherwise of the appointment of the Interim Administrator in my view is not an issue before this court I so find and hold. In any event the Securities and Exchange Commission which the claimant contends it had no power to have appointed an Interim Administrator, is not a party in this suit. Therefore on this, I agree with the submission of the defendant’s counsel that this court cannot make any finding or order that will affect the conduct of SEC in relation to its power to appoint the Interim Administrator of the defendant. I therefore hold that the argument as to the validity or otherwise of the Interim Administrator’s appointment is hereby discountenanced. This leaves me with the aspect of whether or not the claimant’s dismissal is justified. In dismissing the claimant, the defendant anchored the dismissal on the grounds of misconduct. Exhibit Yaroe 9 which is the letter of dismissal states as follows: April 8, 2011 Mr. Binos D. Yaroe Listing Directorate The Nigerian Stock Exchange, Stock Exchange House, 2 – 4 Customs Street, Marina, Lagos. Dear Mr. Yaroe, DISMISSAL FROM THE SERVICE OF THE NIGERIAN STOCK EXCHANGE Further to my letter of March 20, 2011 and in accordance with the Nigerian Stock Exchange Employee Handbook (Management Staff) Article 49 (6) you are hereby dismissed from the service of the Nigerian Stock Exchange with immediate effect. Promptly, upon receipt of this letter, please arrange with Mr. Abdulmumini Ado Yola, AGM/Head Administration and Human Capital for the removal of any personal belongings you may have in the Exchange and the return of any property to the Exchange in your possession, including your staff identity card and employee handbooks. Thank you for your attention to the above. Yours truly, Sgd. Emmanuel Ikazoboh Interim Administrator, The Nigerian Stock Exchange. Now in dismissing the claimant from its service, the defendant based its action pursuant to the provisions of Article 49 (6) of the defendant’s Handbook (Management Staff) Article 49 (6) provides as follows: (6) DISMISSAL (a) Any Management Staff who is guilty of any serious misconduct may be summarily dismissed without notice or payment in lieu of notice. Such serious misconduct includes the following but not necessarily exhaustive since any conduct likely to endanger the lives of employees and property of the Exchange or adversely affect its interests or the operation of its business may constitute serious misconduct. Article 49 (6) also listed the offences that constitute misconduct in the defendant as follows: (i) Stealing or aiding and abetting same (ii) Fraud or aiding and abetting same (iii) Falsification of records or aiding and abetting same (iv) Divulging confidential information (v) Drunkenness or use of narcotics (vi) Deliberate refusal to work (vii) Corruption or attempted corruption (viii) Malicious damage to the Exchange’s property (ix) Conviction for a criminal offence (x) Unauthorized possession of fire arms in the work place (xi) Subversive activity (xii) Gross insubordination (xiii) Dereliction of duty. Dismissal is the maximum punishment that can be given to an employee. Dismissal usually connotes the exercise by an employer of a right to terminate a contract of employment on account of misconduct on the part of the employee, where an employee is guilty of misconduct it presuppose that such a conduct is of grave and weighty character. By dismissal, an employee has nothing to claim from his former employer no matter for how long he has served and a career destroyed almost permanently and with ignominy. See Mr. Ojo Temitope Ezekiel v. Germaine Auto Centre Limited, unreported Suit No. NICN/LA/378/2012 a Judgment of this court delivered on 19th May, 2014. In summary dismissal cases therefore, the courts and this court inclusive will insist on the observance of the rules of natural justice by the employer, also the court will insist on a strict test in determining whether the dismissal is lawful. In the instant case the defendant had alleged that the claimant was dismissed pursuant to clause 49 (6) of the defendant’s handbook which provides for summary dismissal for serious misconduct. That the claimant appropriated monies belonging to the defendant for his own use and has failed to present time to repay these monies. The question is whether this assertion by the defendant is supported by evidence during trial. I do not think so. This is because Article 49 (6) (a) provides inter alia that “any management staff who is guilty of any serious misconduct may be summarily dismissed without notice or payment in lieu of notice”. Like I said above, there is no evidence before me to show that the claimant was found guilty of any misconduct to justify his dismissal. The law is that in employment contracts, both parties are bound by the conditions of service which is part of the contract documenting the employment and in this case is the Employee Handbook for Management staff. The query dated 25th March, 2011 issued to the claimant relates to sale of shares of Great Nigerian Insurance Plc and Dangote Flour Mills which the claimant was alleged to have bought with monies or the NSE/CSCS Staff Co-operative Society in which he was a member and Chairman. This at best is a loan standing against the claimant which he would be required to pay up or deduction of the said Cooperative Society monies could be deducted from his monthly salaries and other entitlement from source which is normally the norm in Staff Co-operative Societies and if he is leaving the service of the defendant, such loans could be recovered from his terminal benefit. As a matter of fact using the NSE/CSCS Staff Co-operative Society monies to purchase shares as alleged in the query to the claimant does not in my view constitute misconduct listed in article 49 (6) of the defendant’s employment handbook. I therefore agree with the submission of the claimant that he cannot be dismissed for a conduct which was not a misconduct or an offence mentioned in the employee handbook I so find and hold. See Section 36 (8) (12) of the 1999 Constitution. In Mr. Peter Olasunkanmi Atoki v. Ecobank Nigeria Plc Suit No. NIC/LA/103/2011 unreported, a Judgment of this court delivered on 12th June, 2014, this court held as follows: “The law is settled that an employer is not bound to give any reason for terminating an employee’s employment or for dismissing an employee. That where however an employer gives reason for terminating or dismissing an employee, the law places a duty on the employer to justify the reasons. In other words, provided the terms of the contract of service between them are complied with, an employer is not bound to give a reason or cause of terminating or dismissing an employee. But where the employer gives reason for the cause of terminating or dismissing the employee, the law imposes on the employer the duty to establish the reason to the satisfaction of the court. Therefore the court can competently inquire into the reason why an employee’s appointment was determined once issues are joined by the parties on the reason for doing so. See Dudusola v. N.G. & Co. Ltd [2013] 10 NWLR (pt. 1363) p. 423, Fakuade v. OAUTH [1993] 5 NWLR (pt. 291) 47, I.J.A.B.U.H.M.B.D.C v. Anyip [2011] 12 NWLR (pt. 1260) p. 1, S.P.D.C (Nig) Ltd v. Olanrewaju [2002] 16 NWLR (pt. 792) p. 38, Comm. Onah v. NLC [2013] 33, NWLR (pt. 94) 104 at 155. In other words, once an employer gives a reason for the dismissal, he is stuck with the reason and the reason is subject to the test of plausibility. See also Vivian Ijeoma Okafor v. Ecobank Nigeria Plc unreported Suit No. NICN/LA/225/2012 a Judgment of this court delivered on 6th June, 2014.” In the case at hand the allegation against the claimant for which he was dismissed was that of misappropriation of the defendant’s funds which I have found and held not to be proved. I am also of the humble opinion that the defendant did not establish any misconduct against the claimant which will warrant a punishment of dismissal and I so hold. In any event by Exhibits Yaroe 13 and Yaroe 14, the High Court of Lagos in Suit No. M/965/2010 between Mrs. Yinka Idowu v. SEC & Ors and the Federal High Court, Lagos in Suit No. FHC/L/CS/963/10 between Prof Ndi Okereke-Onyuike v. SEC & NSE set aside the purported investigations which is the subject matter which the claimant was purportedly dismissed. As a matter of fact, in the said Exhibit Yaroe 14 which is the Judgment/Order of the Federal High Court, the further counter affidavit in opposition to the Originating Summons deposed by one Afolabi Olajide on behalf of the defendant in that Suit, the deponents depositions in paragraphs 21, 22, 23, 24, 25, 26, 27 and 29 are on all fours with the allegations in the query dated 25th March, 2014 issued to the claimant. These same allegations were all quashed by courts of competent jurisdiction. It is therefore an act of contempt and an abuse of court process for the defendant to again in defiance of the judgment of a competent court seek to use the same allegations to dismiss the claimant. I therefore find and hold that the attempt by the defendant to dismiss the claimant on the same issues which were considered closed by the courts as a disrespect to the judiciary of this country and I so hold. If the defendant felt dissatisfied with the said decisions the best is for them to appeal the said judgment and not to result to self help or a kangaroo approach. This is certainly a naked show of arbitrary power and is highly condemnable to say the least. I also note that in the said further counter affidavit, the deponent deposed on behalf of the defendant in paragraphs 18, 19, 20, 21, 22 e.t.c. that it was the then Director-General/Chief Executive that approved the said transfer and payments of the said shares to five other persons including the claimant. So from the depositions on behalf of the defendant, it is clear that the claimant was only acting on the directives of the then Chief Executive/Director-General as far as this transaction which is the subject matter of the claimant’s dismissal was concerned. I therefore ask that why did the defendant turn around to punish the claimant with dismissal in an act it clearly asserted that was directed and masterminded by the then Chief Executive. It is my humble view that this is a clear act of witch-hunt and vendetta meted against the claimant in dismissing him the way the defendant did. On the above reasons, I find and hold that the claimant’s dismissal is wrongful and is in bad faith as well as unjustifiable. As to whether the claimant was given fair hearing, here the claimant’s senior counsel had argued that the circumstances and the manner in which the claimant a General Manager was suspended and then dismissed was devoid of fair hearing as everything was done in a hurry and no procedure was followed before the claimant was dismissed. To this, the defendant thinks otherwise. Now, from the evidence before the court, the defendant did not comply with the provisions of Exhibit Yaroe 1, in suspending and subsequently dismissing the claimant. Article 59 (5.2) of Exhibit Yaroe 1 provides: (5.2) “A management staff against whom any of the foregoing offences is merely alleged shall be placed on suspension with half salary to allow for further thorough investigation to fully determine the guilt or otherwise of the said staff. If the management staff is declared innocent in the end he shall be paid the balance of his salary retrospectively, but if found guilty he shall be dismissed from the service of the exchange.” The claimant in this case was suspended on the 29th March, 2011 without pay contrary to the provisions of Exhibit Yaroe 1 which is part and parcel of the contract of employment binding the parties. From the evidence before the court, the claimant’s query was dated March 25, 2011 which was a Friday and the said query directed the claimant to respond to the said query on Monday 28th March, 2011 by 12.00 noon stating why disciplinary action should not be taken against him. This query was served on the claimant on 28th March, 2011 which was a Monday and the claimant was suspended without pay on 29th March, 2011 and dismissed on 8th April, 2011. I therefore agree with the submission of the claimant’s counsel that failure to put the claimant on suspension with half pay is a violation of the defendant’s own handbook – Exhibit Yaroe 1 and I so find and hold. Case law is replete with authorities that indicate what a claimant needs to show to succeed in a claim for suspension. In Messrs Claudis Ojimah v. Coxdyn Nigeria Ltd, unreported Suit No. NICN/LA/111/2012 the Judgment of which was delivered on March 27, 2014 and Peter Olasunkanmi Atoki v. Ecobank Nigeria Plc (supra), this court reviewed these authorities in the following words – “Suspension is an aspect of the discipline of a staff by an employer and by Imonikhe v. Unity Bank Plc [2011] 12 NWLR (pt. 1262) 624 SC at 649, an employer has the right to discipline any erring employee in the interest of the organization or institution, although NEPA v. Olagunju [2005] 3 NWLR (pt. 913) 602 held that it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. Indeed as held in Shell Pet. Dev. Co. (Nig) Ltd v. Omu [1998] 9 NWLR (pt. 567) 672, it is a disruption of an ordinary employers’ business to fetter him with an injunction not to discipline his servant. The employer accordingly has the right to suspend an employee when necessary, with or without pay or at half pay. However, the English cases of Hanley v. Pease & ‘Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653, held that employers cannot suspend without pay where there is no express or contractual right to do so. The rationale is that in suspending an employee without pay the employer has taken it 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… Where a suspension is vindictive or malafide, Mrs. Abdulrahman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board and Anor [2013] 35 NLLR (pt. 103) 40 NIC held that that may amount to an unfair labour practice and so is actionable under the dispensation of the Third Alteration to the 1999 Constitution. By Yusuf v. VON Ltd [1996] 7 NWLR (pt. 463) 746 CA, SPDC v. Lawson-Jack [1998] 4 NWLR (pt. 545) 249, Ayewa v. Unijos [2000] 6 NWLR (pt. 659) 142, Akinyanju v. UniIlorin [2005] 7 NWLR (pt. 923) 87 and Longe v. FBN Plc [2010] 6 NWLR (pt. 1189) 1 SC, suspension cannot amount to breach of the employee’s fundamental right as it has no bearing with issues of fundamental right under the Constitution. In fact, the law permits a person unlawfully suspended from work to seek redress in the court and claim his full salary (ACB Ltd v. Ufondu [1997] 10 NWLR (pt. 523) 169 CA), which is what the claimant in the instant case has done. Further still, by Yussuf v. VON Ltd [1996] 7 NWLR (pt. 463) 746 CA, suspension cannot be questioned on the ground that it could not be done unless the employee is given notice of the charge and the opportunity to defend himself in that the rules of natural justice do not even apply in cases of suspension. The legal consequence of suspension is determinable from the terms of employment in question. However, a cardinal consequence is that the suspended employee remains an employee of the employer even in suspension. In the instant case, other than exhibit A, there is no “Condition of service frontloaded… since there is no condition of service providing for suspension, it means that there is no express or contractual right of the defendant to suspend without pay. The defendant was accordingly wrong to have suspended the claimant without pay. See Hauley v. Pease & Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653. Even when the defendant argued that on the authority of the Halsbury’s Laws of England, Third Edition, volume 25 at pages 518-519 and Michelin (Nig) Ltd v. Alaribe [2010] All FWLR (pt. 543) 1998 CA an employer can suspend an employee without pay, the defendant did not address its mind to the fact that this is possible only when the conditions of service so provide. Specifically ACB Ltd v. Ufondu [1997] 10 NWLR (pt. 523) 169 held that where there is no justification for putting an employee on suspension in the first place, the employee ought to be paid his salary or the other half of his salary if he is put on half salary; and Yussuf v. VON Ltd (Supra) held that it is not improper for the employer to suspend on full pay an employee pending inquiries on a suspension that may rest on the employee. It is not in doubt that an employer has an unfettered right to suspend, but the scope of that right is contingent on the contract of service and/or conditions of service making the necessary provisions in that regard…..” Also in UBA Plc v. Oranuba [2014] 2 NWLR (pt. 1390) p. 1 at 22 – 23, the Court of Appeal, Lagos Division per Iyizoba, JCA held as follows: “The problem with the appellant’s contention is that the respondent was suspended on half salary which is punitive in nature. It is certainly against fair hearing and the rule of natural justice to take such a punitive measure against the respondent without first giving her a hearing through a query where the appellant desired to proceed under Clause 4.2.3 of exhibit D2 to suspend the respondent in order to make room for proper investigation, such suspension ought to be on full salary in order not to create the impression that the respondent has already been found guilty without giving her any hearing. In support of this stand, the appellant had referred to the case of Lewis v. Heffer & Sons [1978] 3 ALLER 254, but in that case the suspension was with full pay. Lord Denning stated the law thus: “Very often irregularities are disclosed in a business house, and a man may be suspended on full pay pending inquiries. Suspicion may rest on him and so he is suspended until he is cleared of it. No one so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself, and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something may be done at once. The work of the department or the office is being affected by rumours and suspicions…” In the instant case, Exhibit Yaroe 1 which was frontloaded and relied upon by all the parties provides that a management staff should be suspended with half pay, I therefore hold that the claimant’s suspension without pay is wrongful. Also, Article 59 (5.2) of Exhibit Yaroe 1 states that the suspension of a management staff is to allow for a thorough investigation to determine the guilt or otherwise of the said staff. In the case at hand the hurried manner in which the claimant was hounded out of office did not show to me that any thorough investigation was done by the defendant. It is my humble view that the defendant had already made up its mind about the guilt of the claimant in the way and manner he was hurriedly dismissed from office. From the whole scenario of this case it is my view that the claimant was not given an opportunity to present his side of the story before he was dismissed as he was not given fair hearing. Fair hearing means that the affected person accused in given opportunity to defend himself but in this case, the claimant had no opportunity of time enough to present his case. As a matter of fact it was also in breach of Article 59 of Exhibit Yaroe 1 on Disciplinary procedure which provides as follows: “Notwithstanding the category of misconduct the Exchange shall adhere to the principle of natural justice”. Therefore from the totality of the evidence adduced before me I find and hold that the claimant was not given adequate time to prepare and defend the allegations against him and this is a travesty of fair hearing and so the doctrine of audi alteram partem was violated. See Aiyetan v. NIFOR [1987] 3 NWLR (pt. 59) 66, Olarewaju v. Afribank Nig Plc [2001] 13 NWLT (pt. 731) 691 at 712, Denloye v. Medical & Dental Practitioners Disciplinary Committee [1968] 1 ALL NLR 306 and Garba & Ors v. University of Maiduguri 2, NPILR 50. Furthermore, there is evidence before me which I also believe that the Interim Administrator was the accuser, the investigator, the judge and the final decision maker. This is so because the Interim Administrator’s hand and directives was all over this case from the initiation of the query, he signed the letter of suspension and the letter of dismissal. There was clearly evidence of the Interim Administrator Mr. Emmanuel Ikazobor’s undue and overbearing influence at all levels of the claimant’s travail. For instance the Interim Administrator Mr. Emmanuel Ikazobor commissioned the Forensic Audit, he received the report of the said audit wherein he extracted the allegations concerning the claimant and instructed that a query be issued, he suspended the claimant pending further investigation without pay, he dismissed the claimant, he was a member of the council in fact the Vice Chairman of the Council that received the claimant’s appeal regarding his dismissal, he was the Chairman of the Finance and General Purpose Committee that the claimant’s appeal was referred to by Council, he was part of the Council that considered the Finance and General Purpose Committee’s recommendation for sustaining his dismissal. I therefore agree with the submission of the claimant’s counsel that Mr. Emmanuel Ikazobor was everything, he was everywhere and therefore cannot be but guilty of bias of monumental height. This overbearing conduct of Mr. Emmanuel Ikazobor clearly in my view violated the basic principle of nemo judex in causa sua. See LPDCN v. Fawehinmi [1985] 2 NWLR (pt. 7) p. 300, Alakija v. Medical Disciplinary Committee [1949] NSCC, 20. I therefore hold that all the procedure leading to the dismissal of the claimant ran contrary to the rules of fair hearing and rules of natural justice and so has occasioned miscarriage of justice against the claimant. I therefore hold that the claimant’s dismissal was wrongful and unlawful. Having found and declared that the claimant was wrongfully dismissed, the next issue is the remedies to be awarded in favour of the claimant. In Peter Olasunkanmi Atoki v. Ecobank Nigeria Plc (supra). This is what this court said – “The cardinal principle I need to consider in the instant case in determining this very issue is the effect of the action of the defendant on the personality or the professional career and integrity of the claimant in this whole scenario. The issue to note here is that when an employer wrongfully dismisses an employee on ground of professional misconduct and conflict of interest in circumstances as this, it puts a stigma on the career of the said employee thereby limiting the employee’s prospect of securing another job. I liken dismissal to death penalty or conviction in criminal adjudication. With dismissal, an employee has nothing to claim from his former employer no matter for how long he has served. With dismissal, a career and reputation is destroyed almost permanently and with ignominy and public ridicule. See Ojo Temitope Ezekiel v. Germaine Auto Centre Limited unreported Suit No. NICN/LA/378/2012, a Judgment of this court delivered on 19th May, 2014. Dismissal is also a punitive disciplinary measure and depending on the contract of employment, very often entails a loss of terminal benefits. It also carries an unflattering opprobrium to the said employee”. Also in Industrial Cartons Ltd v. NUPAPPW [2006] 6 NLLR (pt. 15) 258 this court held that where the reason given for the termination of an employment is incorrect, the payment of one month’s salary in lieu of notice will be grossly inadequate as compensation. In that case this court on that ground went on to award six months’ salary as due compensation. Section 19 (d) of the National Industrial Court Act 2006 empowers this court to make an award of compensation or damages in any circumstance contemplated under the Act or any other act of the National Assembly dealing with any matter this court has jurisdiction to hear. The case of Andrew Monye v. Ecobank Plc (supra) simply reinforces my view that the dismissal of the claimant by the defendant was wrong, unlawful and hence wrongful. See Joseph Chidubem Nwachukwu v. Mainstreet Bank Limited (formerly known as Afribank Nig. Plc & International Bank for West Africa Ltd) unreported Suit No. NIC/LA/184/2011 a Judgment of this court delivered on 17th July, 2013. In the instant case the claimant as General Manager was dismissed on allegation of misappropriation of the defendant’s monies which allegation I have found and held not proved. I am of the humble view that in the instant case the dismissal of the claimant carries with it some stigma on his character, infamy and career stigma. I am therefore persuaded to award substantial damages far beyond the normal period of notice. My view in this regard is anchored on the case of British Airways v. Makanjuola [1993] 8 NWLR (pt. 311) at 289 where it was held by the Court of Appeal interalia that where determination of employment carries with it some stigma on the character of the employee, for which the employee shall be entitled to substantial damages for the period of the notice required. In the circumstance, I hereby award N30,000,000.00 (Thirty Million Naira) as damages for the humiliation and embarrassment suffered by the claimant as a result of his unjust and wrongful dismissal. See also Irem v. Obubra District Council [1956 – 1960], NSCC p. 16. See also the following decisions of this court relied on in support of this: Industrial Cartons Limited v. National Union of Paper and Paper Converters Workers [1980 – 1981], Nigerian Sugar Company Limited v. National Union of Food, Beverages and Tobacco Employees (Suit No. NIC/13/78 delivered on 17th January, 1979), National Union of Textile, Garment and Tailoring Workers v. Nigeria Kraft Bags Limited (Suit No. NIC/8/78 delivered on 12th February, 1979) and Grizi (Nig) Limited v. Grizi (Nig) Limited Group of Companies Workers Union (Suit No. 12/78). See also Professor C.K. Agomo: Nigerian Employment and Labour Relations Law and Practice, published by Concept Publications Limited, Lagos, 2011 pages 193 – 194. As regards whether or not the Interim Administrator has the power to dismiss the claimant on the 8th April, 2011 when his tenure had ended, having held and declared that the whole process leading to the dismissal of the claimant as well as the said dismissal to be wrongful, invalid and of no effect, there is no need to waste precious energy on this point which effect will still be the same as held above. It will be an academic exercise which I am not willing to embark upon at least in this Judgment. The claimant also prayed the court to order that he be reinstated to his office and to his position as General Manger of the defendant. I am of the view that the claimant’s employment not being one with statutory flavor but that of master and servant simpliciter, the remedy of reinstatement is not available to him. It has been held in a plethora of authorities that where a contract of employment is breached and the employee is not a statutory employee, the relief available is damages which I have already awarded to the claimant. See NEPA v. Isieveore [1997] 7 NWLR (pt. 511) p. 135, U.B.N Ltd v. Ogboh [1995] 2 NWLR (pt. 380) p. 647 at 664, Olaniyan v. University of Lagos [1985] 2 NWLR (pt. 9) p. 599. I therefore hold that the claimant is not entitled to the remedy of reinstatement. Also in the course of defending the allegation of misappropriation of funds leveled against the claimant at the trial and in the pleadings, it was clear that the claimant used monies from the NSE/CSCS Staff Co-operative Society to purchase shares which monies the claimant was yet to pay back at the time of his dismissal. The claimant himself admitted this much during cross examination by the defendant’s counsel. Borrowing monies from a Staff Co-operative Society to invest in the purchase of shares or indeed any investment at all as I have already held is not an offence let alone a criminal offence. But there is an obligation on the part of the borrower and in this case the claimant to pay the amount borrowed so that the monies when paid can also be used for the benefit of other members of the said NSE/CSCS Co-operative. The monies as it were belong to all members of the Co-operative Society including the claimant. From the evidence both documentary and oral before the court, it is not in doubt that the claimant purchased Dangote Flour Mills shares and Great Nigeria Insurance Plc shares with funds from the NSE/CSCS Staff Co-operative Society. As a matter of fact under cross examination the claimant admitted purchasing 1,000,000 units of Dangote Flour Mills shares. Also the claimant agreed that Impact Management Limited a company owned by the claimant and members of his family purchased 8,000,000 units of Great Nigeria Insurance Plc with funds from the NSE/CSCS Co-operative Society and the said money is yet to be paid to the Co-operative Society. See Exhibit NSE 5, NSE 6, NSE 7 and Exhibit NSE 8. It is therefore my humble view tht the claimant is yet to discharge this obligation to the NSE/CSCS Co-operative Society. I therefore hold and order that the said debt be properly calculated and the claimant made to pay for it, this should be deducted from his terminal benefits and other entitlements due to him from the defendant. As regards the defendant’s counter claim, the defendant submitted that it demanded for the return of the Toyota Prado Jeep officially allocated to the claimant in his capacity as General Manager and that he has refused to return it. The defendant therefore alleged illegal conversion against the claimant. To this I am of the view that the claimant came into lawful possession of the said vehicle in his official capacity and as a staff of the defendant before their relationship went soar. I am therefore of the view that a claim for conversion cannot in this case lie against the claimant more so that the claimant is in this court challenging the legality of his dismissal by the defendant. In any event the defendant did not lead evidence to show that it demanded for the return of the said vehicle unequivocally in fact the letter of dismissal did not even demand the return of the said vehicle. However the claimant himself in his pleadings said he is holding unto the said vehicle until the court determines the validity of his dismissal one way or the other. From the evidence adduced by the defendant as well as from its pleadings, the said Toyota Prado Land Cruiser Car Model of 2008 year of purchase was given to the claimant as his official car as a General Manager. This means the said car was purchased in 2008. The claimant agreed that he is still in possession of the said car pending the determination of this suit challenging his unjust dismissal. It is not in doubt that the claimant had worked for 13 years as at the time he was unlawfully dismissed. Having held that the dismissal of the claimant was wrongful, I hereby substitute the dismissal to a verdict of retirement with effect from 5th April, 2011. I therefore order that the claimant be retired with his full benefits and all entitlements due to him as per his rank and salary less any indebtedness to the defendant. In respect of the said Toyota Prado Land Cruiser Car with Registration No. DG 418 APP, I order that the said vehicle be valued as per its present value and sold to the claimant at book value as is the practice in the defendant regarding its management staff when they retire from its service. I have come to this inevitable conclusion because the conduct of the defendant in this case shows an intention to determine its employment relationship with the claimant. Since this is a contract of service in which specific performance will not normally be ordered so as not to create a situation whereby an employee will be foisted upon an unwilling employer. It is in view of this that I refused to order reinstatement in favour of the claimant. I therefore set aside the claimant’s dismissal and enter a verdict of Retirement with effect from 8th April, 2011. On the whole and for avoidance of doubt, I hold and DECLARE as follows: (1) The suspension of the claimant without pay is a violation of the defendant’s employment handbook and is hereby set aside. (2) The dismissal of the claimant by the defendant vide its letter dated 8th April, 2011 is hereby set aside. (3) It is hereby ordered that the dismissal of the claimant is accordingly changed to Retirement with effect from 8th April, 2011. (4) The defendant shall pay the claimant his full benefits and all entitlements as well as all terminal benefits due to him in line with the defendant’s condition of service less any indebtedness to the defendant. (5) The defendant shall pay the claimant N30,000,000.00 (Thirty Million Naira) as general damages for wrongful and unlawful dismissal. (6) The claimant is to pay his indebtedness to the NSE/CSCS Staff Cooperative Society. This should be properly calculated and deducted from his terminal benefits. (7) The claimant’s official Toyota Land Cruiser Prado Car be boarded/sold to him at book value with effect from the date of this Judgment. (8) Other reliefs not specifically granted are hereby refused. (9) Cost of this proceedings is assessed at N100,000.00 in favour of the claimant. (10) These orders are to be complied with not later than 30 days from the date of this Judgment. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Presiding Judge