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The claimants had commenced this action vide a complaint dated and filed on 7th November 2012 praying for the following reliefs – 1. Declaration that summary dismissal of the plaintiff via a letter dated 28th August 2012 is illegal, unlawful null and void. 2. Declaration that the plaintiff was not afforded fair hearing before she was summarily dismissed. 3. An order compelling the defendant to pay to the plaintiff her salary and entitlement up till date. 4. N200,000.00k as special damages being solicitor’s professional fees. 5. An order compelling the defendant to reinstate the plaintiff to her duty post. 6. N25 Million as general damages for unlawful dismissal and breach of contract. Accompanying the complaint are the statement of facts, written statement on oath of the claimant, list of witness, list of documents and copies of the documents. By the order of the Court of 4th June 2013, the claimant was granted leave to amend her statement of facts, and to file and serve additional documents and witness statement on oath. The reliefs prayed for by the claimant, however, remained same. All the documents frontloaded by the claimant were admitted and marked as Exhibits C1 – C6. In reaction, the defendant filed its memorandum of appearance, statement of defence, list of defendant’s witnesses, written statement on oath of the defendant’s witness, list of documents to be relied upon by the defendant and copies of the documents, later admitted and marked as Exhibits D1 – D12. At the trial, the claimant testified on her own behalf as CW, while Emmanuel Idowu Adenipekun, a Trade Analyst with the defendant, testified for the defendant as DW. At the conclusion of trial, parties were asked to file and serve their respective written addresses starting with the defendant in accordance with Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. The defendant’s final written address is dated and filed on 21st January 2014. That of the claimant is dated 20th February 2014 but filed on 21st February 2014. The defendant’s reply on points of law is dated and filed on 4th March 2014. The case of the claimant is that she and two other staff were queried for breach of audit procedure. During the defendant’s investigation, it was discovered that the other two members of staff collected recharge cards as inducement for their involvement. That the claimant who was not indicted to have collected any form of inducement was, as well as the other two members of staff, summarily dismissed by the defendant. The claimant then filed this action to challenge her summary dismissal, claiming the reliefs already reproduced. The case of the defendant is that the claimant and two other employees of the defendant (Charles Ozah and Ekene Odagu) on 3rd July 2013 deliberately sidetracked the normal known laid down procedural channels and fast-tracked the issuance of Risk Assessment Reports (RARs) in respect of certificate numbers: CN/000092432/001 and CN/000092433/001. The defendant investigated the matter and discovered that the RARs were undervalued which occasioned payment of lower import duties by the importer and loss of revenue to the Federal Government of Nigeria (FGN). The claimant and the two employees were then issued a query dated 9th August 2012. In their response, that all three employees admitted to have breached the procedure for issuance of RARs and the claimant specifically admitted that her action amounted to gross misconduct and also promised never to be involved in such a scam in the future. That subsequent to this admission, the three were summarily dismissed vide individual letters dated 28th August 2012, which contained the following term accepted by the claimant: This letter discharges the company from all claims, monetary or otherwise, liabilities or obligations that you may have against it now or in the future that arises out of or in connection with your employment with company. The defendant then asserted that the claimant’s case is that she only confessed to breach of the procedure for issuance of RAR and not to corruption. Consequently, the defendant should not have dismissed her for corruption as the dismissal letter purported to do. The defendant framed four issues for the determination of the Court, namely – a) Whether the claimant is entitled to a declaration that her summary dismissal vide letter dated 28th August 2012 is illegal, unlawful, null and void. If the answer is in the affirmative, whether the claimant’s contract of employment was validly terminated by a letter of summary dismissal dated 12th August 2012. b) Whether the claimant was afforded fair hearing prior to her summary dismissal by a letter dated 28th August 2012. c) Whether having regard to the contract of employment the claimant is entitled to general damages. d) Whether having accepted the terms and conditions of the letter of dismissal dated 28th August 2012, the defendant is discharged from all claims, liabilities or obligations in connection with the claimant’s employment. Regarding issue a), the defendant additionally asked whether the claimant’s summary dismissal is valid on the ground of corrupt involvement in violation of the SGS Code of Integrity and SGS Scanning Nigeria Limited Human Resource Policy Manual. To the defendant, the law recognises two categories of employment: ordinary master and servant employments under the common law, and employments with statutory flavour. That the remedy available to an employee wrongfully terminated will be determined by the nature of the contract of employment. That in respect of the former, specific performance is not available and all the claimant can claim is damages, citing Chukwumah v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 512 and Co-operative Development Bank v. Essien [2001] 4 NWLR (Pt. 704) 479. That this principle will only be circumvented in contracts of employments with statutory flavour, citing FCDA v. Sule [1994] 3 NWLR (Pt. 332) 257 at 285H and Nwosu v. Imo State Environmental and Sanitation Authority [1990] 2 NWLR (Pt. 135) 688. Also referred to the Court is the Supreme Court case of Olarewaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691 at 705. That in the instant case, the claimant’s employment is not one with statutory flavour and so she cannot claim a declaration that the dismissal is illegal, unlawful, null and void or claim an order compelling the defendant to reinstate her. In other words, that the Court cannot grant reliefs 1, 2, 3, 5 and 6. The defendant continued that in the unlikely event that this Court holds that the claimant is entitled to reliefs 1, 2, 3, 5 and 6, the follow-up question would be whether the claimant’s contract of employment was validly terminated by the letter of summary dismissal dated 18th August 2012 on the ground of corrupt involvement in violation of the SGS Code of Integrity and SGS Scanning Nigeria Limited Human Resources Policy Manual. That the claimant’s contract of employment also incorporates the SGS Code of Integrity and professional Conduct, SGS Use of Internet Policy and SGS Scanning Human Resources Policy as part of the claimant’s contract of employment, referring to Buba v. NCATC [1991] 5 NWLR (Pt. 192) 388 at 413 and Efet v. INEC [2011] 7 NWLR (Pt. 1247) 447. The defendant went on to refer to its Code of Integrity, which provides under “Integrity of Services” for all SGS services to be undertaken professionally and honestly and in accordance with agreed standards, methods and policies; and the need to accurately document findings and results. Also referred to the Court is the provision under “No tolerance for Violation”, which provides that any breach of the Code, however small, will result in disciplinary action including termination of employment and criminal prosecution for serious violation. The Human Resources Policy Manual then in clause 15.0 makes provision for summary dismissal in the following words – Any conduct likely to endanger the lives or safety of otters or the Company’s property or operations may rank as serious misconduct. And examples of serious misconduct include stealing or fraud, dereliction of duty, corruption, disregard of rules and regulations, etc. To the defendant, an employer has absolute rights to discipline an erring employee (citing Imonike v. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) 649) as well as terminate, retire, suspend or dismiss an employee’s employment for good or bad reason or for no reason at all (Azenabor v. Bayero University, Kano [2009] 17 NWLR (Pt. 1169) 96 at 108 D – F, Fakuade v. OAUTH [1993] 5 NWLR (Pt. 291) 47, Nitel Plc v. Akwa [2006] 2 NWLR (Pt. 964) 391 CA and Commissioner for Works, Benue State v. Devcon Ltd [1988] 3 NWLR (Pt. 83) 407 at 425 SC). That in the instant case, the claimant was issue a query dated 9th August 2012 to explain in writing her involvement with the non-procedural issuance of certificates CN/000092432/001 and CN/000092433/001. That the claimant in her response admitted and also explained how she was pressurised into the act which contradicts the SGS Code of Integrity. Her words – Indeed, I regret issuing the files before the usual pre-audit. I realise my mistake and admit it is a gross misconduct. I promise never to be involved in such case anymore. That it was in consequence of this that the claimant was issued with a letter of summary dismissal dated 22nd August 2012, which reads – We refer to the query issued to you on “Breach of Audit Procedure”. Your response to the query admitted your involvement in the corruption and in essence violated the Company’s code of integrity rule on corrupt practices. The consequences of your action falls clearly under paragraph 15.0(v) of the Human Resources Policy Manual. That the claimant out of her volition and without any form of coercion confessed in writing to her involvement stating also that her action amounts to gross misconduct and expressed regret for her action. That the claimant deviated from the RAR issuance procedure/channel (Exhibit 12) by effecting step 9, “issue and print RAR final copy” without observing step 8, “Submit the file to EA for quality audit process Record quality audit findings Submit to RIO for issuance”. That the breach of this audit procedure by the claimant aided Charles Ozah and Ekene Odagu in their corrupt acts which they confessed to have benefited from by receiving recharge cards, referring to paragraphs 11, 12 and 13 of DW’s (Emmanuel Adenipekun’s) statement on oath. That the claimant’s breach of audit procedure directly or indirectly amounts to corrupt involvement as it aided Charles Ozah and Ekene Odagu in their corrupt benefitting from the breach of the audit procedure. The defendant then submitted that it is of no moment, that the claimant did not receive any pecuniary benefit from the breach of audit procedure which Charles Ozah and Ekene Odagu corruptly benefited from, as she admitted voluntarily to being involved. To the defendant, gross misconduct is one of the established and recognized grounds upon which an employee can be dismissed summarily and what amount to gross misconduct is a question of fact which must be determined on a case by case basis, citing Yusuf v. Union Bank of Nigeria Ltd [1996] 6 NWLR (Pt. 457) 632 SC, where it was held that – There are well recognized grounds on which employer may dismiss an employee summarily. These include: (a) gross misconduct (c) gross neglect (c) disobedience of lawful order (d) dishonesty and so forth. That in the instant case, the claimant’s employment was terminated on the ground of “serious misconduct” (or gross misconduct) as provided for in paragraph 15(v) of the defendant’s Human Resources Policy Manual after being afforded adequate fair hearing. The claimant having admitted to “gross misconduct” cannot be heard to complain that her termination is illegal, unlawful, null and void in the light of her voluntary confession and admission. Furthermore, that the claimant accepted the content and ground of her letter of summary dismissal dated 28th August 2012 in its entirety without any form of objection as follows: “I confirm that I accept the terms and conditions of the letter”. That the claimant signed same and dated it 31st August 2012. The defendant then submitted that in the light of the foregoing, the claimant’s employment was validly terminated, urging the Court to so hold. On issue b) i.e. whether the claimant was afforded fair hearing prior to her summary dismissal by a letter dated 28th August 2012, the defendant contended that it goes without saying that the principle of “fair hearing” is a very cogent and important principle in law as has been enshrined by section 36 of the 1999 Constitution, as amended. That the principle has received a great deal of judicial interpretation, so much so that it has become trite law that the principle is hinged on the cardinal twin pillars of nemo judex in causa sua (i.e. nobody shall be a judge in his own case) and audi alterem partem (i.e. hear the other side), citing Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 423 SC at 618. That the second principle is the relevant one in the circumstances of this case. The defendant then submitted that once a party has been afforded an adequate opportunity to present his case before his rights are determined, this condition has been fulfilled. Furthermore, that the burden of establishing breach of the principle of fair hearing is on the claimant, referring to Maikyo v. Itodo [2007] 7 NWLR (Pt. 1034) 443 SC at 465. That the Supreme Court in Inakoju v. Adeleke (supra) while deprecating the practice of resorting to the principle of fair hearing as if it were a magic wand meant to nullify an unfavourable proceeding, had this to say – ...Fair hearing is not a cut and dry principle which parties in the abstract always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case. To the defendant, the undisputed facts of the present case are that the claimant was accused of breach of audit procedure in perfecting a corrupt act in order to influence the following transactions: File Number BA-084-0l20060119 (3599912911) with Certificate Number: CN/000092432/001, and File Number BA-084-201200601219/001 (3605531511) with Certificate Number AE/000992688/00l, wherein she inordinately issued the said certificates at a ridiculously low rate and without approval from the audit department of the defendant company; an act which is prohibited by the terms of the contract of employment between the parties (as replete in Exhibits D10, Human Resources Policy Manual; D11, SGS Code Of Integrity; and D12, RAR Issuance Procedure/Channel). That upon investigation, the claimant admitted both orally and in writing (referring to Exhibit D2 and paragraph 17 of the defendant’s witness statement on oath of Emmanuel Adenipekun) that her highly reprehensible conduct is a “gross misconduct” in crass violation of the defendant company’s SGS Code of Integrity and Professional Conduct. Given the above synopsis of the facts, the defendant submitted that the defendant company’s action in giving the claimant a dual opportunity (both oral and written) to be heard amounts to fair hearing. Furthermore, that this position is further buttressed by the locus classicus case of Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) 624 (which is substantially similar in facts) where the apex court held inter alia – Where an employer accuses an employee of misconduct by the way of a query and allows the employee to answer the query, and the employee answers the query before the employer takes a decision on the employment of the employee, that satisfies the requirement of fair hearing because he answered the respondent’s queries before he was dismissed from his employment. On the same issue of whether an employee who replied a query in writing before dismissal can complain of denial of fair hearing, Onnoghen, JSC had this to say – Appellant was given the opportunity of defending himself against the allegations leveled against him and he utilized same. He was therefore given a fair hearing. So I hold the considered view that his dismissal in the circumstance cannot be set aside simply because he was not criminally prosecuted prior to the dismissal. In conclusion, the defendant submitted that on the strength of the aforementioned apex court decisions (Imonikhe v. Unity Bank Plc and Baba v. NCATC), the claimant cannot be heard to complain of breach of fair hearing prior to her dismissal given that she was adequately issued a query stipulating her offence, which was breach of RAR Issuance Procedure/Channel amounting to a corrupt act in the SGS Code of Integrity and Professional Conduct and the SGS Human Resources Policy Manual. Thus, the claimant’s oral and written responses to the query is sufficient to defeat the claimant’s claim that she was not given a fair hearing, urging the Court to so hold. Regarding issue c) i.e. whether having regard to the contract of employment the claimant is entitled to general damages, the defendant pointed out that the claimant’s claim for general damages against the defendant company consist of N200,000:00k (Two Hundred Thousand Naira) as general damages being the solicitor’s professional fees and N25 Million as general damages for the unlawful dismissal and breach of the contract. To the defendant, the claims for general damages are untenable. To start with, that the Benin Division of the Court of Appeal of Nigeria in Guinness Nigeria Plc v. Nwoke (2000) 12 NWLR (Pt. 689) 135 held that it is unethical and an affront to public policy for a litigant to pass on the burden of his solicitor’s fees to his opponent in a suit. That this decision has been affirmed and upheld in the subsequent case of SPDC Nig. v. Okonedo [2008] 9 NWLR (Pt. 1091) 85 at 122. In view of these decisions, the defendant urged the Court to dismiss the claimant’s claim for professional fees in its entirety. It is further submitted by the defendant that the Court does not grant general damages in claims for breach of contract. Rather, where an employee in an ordinary contract of service of master and servant is found to be wrongfully terminated, the employee will only be entitled to damages, which would be what he would have earned over the period of notice required to lawfully terminate his employment. In other words, the damages the claimant is entitled to, assuming the dismissal is declared to be wrongful, is the salary the defendant would have paid in lieu of notice. That it is, therefore, settled that in a claim for wrongful dismissal or wrongful termination, the measure of damages is prima facie the amount that the claimant would have earned had the employment continued according to contract. Where, however, the defendant on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the claimant over the period of notice bearing in mind that the duty of the claimant to minimize the damages which he sustains by the wrongful dismissal, citing Ifeata v. SPDC (Nig) Ltd [2006] 8 NWLR (Pt. 983) 585 SC. To the defendant, it is pertinent to note that the claimant has not claimed damages for wrongful dismissal and, therefore, cannot be granted any relief of that nature. Also, the claimant has not pleaded or led evidence to show what the length of notice or salary in lieu of notice should be under the contract of employment. That this Court cannot speculate or assist the claimant to produce the pleadings or evidence. In sum, that the claimant has not pleaded or made out a case for damages, urging the Court to so hold. On issue d) i.e. whether having accepted the terms and conditions of the letter of dismissal dated 28th August 2012, the defendant is discharged from all claims, liabilities or obligations in connection with the claimant’s employment, the defendant contended that the claimant was summarily dismissed by the defendant vide a letter dated 28th August 2012. The letter of dismissal contained the following terms and conditions which were accepted by the claimant: This letter discharges the company from all claims, monetary or otherwise, liabilities or obligations that you may have against it now or in the future that arises out of or in connection with your employment with the company. That the claimant accepted the above terms and conditions of her letter of summary dismissal dated 28th August 2012 in its entirety without any form of objection as follows: “I confirm that I accept the terms and conditions of the letter”. The claimant signed same and dated it 31st August 2012. The defendant then submitted that the defendant is discharged from all claims, liabilities or obligations in connection with the claimant’s employment and the claimant is estopped from asserting the contrary, urging the Court to so hold. In conclusion, the defendant urged the Court to discountenance the claims by the claimant as they are frivolous, vexatious and lacking in merit and as such should be dismissed with substantial cost. In reaction, the claimant framed five issues for the determination of the Court, namely – 1. Whether the claimant is entitled to a declaration that her summary dismissal vide letter dated 28th August 2012 is illegal, unlawful, null and void. If the answer is in the affirmative, whether the claimant’s contract of employment was validly terminated by a letter of summary dismissal dated 28th August 2012. 2. Whether the defendant (sic) was afforded fair hearing prior to her summary dismissal by a letter dated 28th August 2012. 3. Whether having regard to the contract of employment the claimant is entitled to general damages. 4. Whether having accepted the terms and conditions of the letter of dismissal dated 28th August 2012, the defendant is discharged from all claims, liabilities or obligations in connection with her (claimant’s) employment. 5. Whether having regard to the contract of employment the claimant is entitled to special damages. The claimant took up issues 1 and 2 together and submitted that she has led concrete and credible evidence in order to be entitled to the reliefs in her amended statement of facts. To the claimant, it is trite law that in civil litigation, the onus is on the claimant to prove her case base on the preponderance of evidence. In other words, the claimant’s claim is bound to succeed if she can adduce cogent and compelling evidence to justify her entitlements to the claim before the Court, referring to Omman v. Ekpe [2001] 1 NWLR (Pt. 641) 365 at 374. The claimant then submitted that she is entitled to the declaration that her summary dismissal vide letter dated 28th August 2012 is illegal, unlawful, null and void. That she pleaded and gave evidence as to the fact that she was queried on issue of breach of audit procedure but was dismissed for corrupt act and corruption. That a case of corrupt act or corruption was not investigated against her, and she was not afforded the opportunity to defend herself on the issues of corrupt act and corruption. That the DW also confirmed that regarding the case of the claimant, their investigation showed that the claimant did not receive any form of inducement as the other 2 members of staff that received recharge cards. DW in his evidence during cross-examination stated as follows – ...We could not establish that the claimant collected anything. We actually could not establish that the claimant received recharge cards. Since two of the three received recharge cards, we assumed the third must have also received the recharge cards.” That from the evidence of DW, the defendant summarily dismissed the claimant based on the ASSUMPTION that since two of the 3 received recharge cards, the defendant ASSUMED that the third (the claimant) must have also received the recharge card. The claimant then submitted that she was denied fair hearing for the defendant’s failure to afford her opportunity to defend herself on issue of corrupt act and corruption. She, however, conceded to the fact that the employer can terminate her appointment without giving any reason; but that it is the duty of the employer when challenged as in this case to justify the dismissal, referring to Godwin Iweha v. Ebice Company Limited [2004] 11CLRN 135 at 143. To the claimant, she was accused of breaching audit procedure which she admitted in her response to query issued to her but she was dismissed for corrupt act and corruption. It is her submission that she was not afforded fair hearing, as allegation of corrupt act and corruption was not placed before her to defend herself before she was dismissed on the ground of corrupt act and corruption. The claimant referred to paragraph 8.29 of the defendant’s final written address, where it was written that “the undisputed facts of the present case is that the claimant was accused of breach of audit procedure in perfecting a corrupt act...” To her, this statement amounts to misrepresentation/fabrication of facts as the claimant was accused of breach of audit procedure and nothing more. Nowhere were the words “in perfecting a corrupt act” appeared in the Exhibit C1, the query issued to the claimant. The claimant then urged the Court to hold that the defendant has not justified the reason for the dismissal of the claimant and that the claimant was denied fair hearing as she was not afforded any opportunity to defend herself on issues that border on corrupt act and corruption. Regarding issue 3 i.e. whether having regard to the contract of employment the claimant is entitled to general damages, the claimant contended that in the event that that the defendant wrongly accused the claimant of corrupt act and corruption, without any justification, even DW conceded to the fact that the claimant was dismissed based on assumption that since two of the 3 received recharge cards, the defendant ASSUMED that the third (the claimant) must have also received the recharge card, the content of the dismissal letter had prejudiced the claimant’s prospects of securing another job as no employer will be willing to employ an applicant that was dismissed on the ground of corruption, referring to Exhibit C1, which shows that the claimant was dismissed on the ground of corrupt act and corruption. That this Court has on several cases charted a new path from what the common law would normally allow as compensation or remedy for wrongful exercise of right to terminate a contract of appointment, referring to Industrial Cartons Ltd v. National Union of Paper and Paper Converters Workers [1980 – 1981] NICLR at 54 and Michellin (Nigeria) Ltd v. Footwear, Leather and Rubber Products Senior Staff Association [1980 – 1981] NICLR 153. On issue 4 i.e. whether having accepted the terms and conditions of the letter of dismissal dated 28th August 2012, the defendant is discharged from all claims, liabilities or obligations in connection with her claimant’s employment, the claimant submitted that she “accepted the terms and condition of the letter of dismissal 28th August 2012, the defendant is discharged from all claims, liabilities or obligations these claims, liabilities or obligations does not include court action to challenge the correctness or otherwise of the dismissal of the claimant as court action was not listed as one of the items that the defendant is discharged from, and the claimant did not expressly stated that she has waived her constitutional right to seek redress legal and lawful redress in court against her unlawful dismissal”. Regarding issue 5 i.e. whether having regard to the contract of employment the claimant is entitled to general damages, the claimant submitted that she pleaded the professional fees paid to her counsel as a special damages and give evidence in respect of the said pleading in her evidence in chief, referring to paragraphs 16 and 18 of the amended statement of fact as well as paragraph 11 of the witness statement on oath. This pleaded fact, the professional fee as special damages was neither challenged nor controverted by the defendant be it in its pleadings or in the evidence of its witness. The claimant then submitted that the Court is bound to accept as the truth uncontroverted/unchallenged averment supported by evidence, referring to Musa v. Yerima [1997] 7 NWLR (Pt. 511) 27. To the claimant, the defendant was given the access to the fact as it relates to the special damages claimed by the claimant but the defendant did not controvert/challenge the fact, referring to Anazodo v. Pazmeck Inter Trade [2008] All FWLR (Pt. 432) 1201 at 1217 – 1218 E – D where it was held that – The law does not require an extraordinary measure of evidence to establish entitlement to special damages. Special damages must be specifically pleaded and proved. A plaintiff claiming special damages has an obligation to plead and particularize any item of damage. The obligation to particularize arises not because the nature of loss is necessarily unusual, but because the plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible. In the instant case, the plaintiffs proved the legal fees claimed as special damages, which claim was not challenged nor controverted, the trial court therefore ought to have allowed the claim rather than reducing the amount claimed. The award was therefore set aside and the full amount claimed was restored. Also referred to the Court is Uman v. Owoeye [2003] 9 NWLR (Pt. 825) 221 at 239 C – E, which held that – Unchallenged evidence can constitute sufficient proof of special damages particularly where the court finds the evidence credible, accurately measured, or such as could easily lend itself to quantification without putting the court to unnecessary strain of searching for more acceptable figures. And in Obasuyi v. Business ventures Ltd [2000] 5 NWLR (Pt. 658) 668 at 696 – 697 B – E, that it was held that – A plaintiff has an obligation to plead and particularize any item of damage which represents out-of-pocket expenses, or loss of earnings (as in the present case), incurred prior to the trial, and which is capable of substantially exact calculation. Not only must special damages be carefully particularized, the evidence in support of them must be credible. The claimant then urged the Court to discountenance with the submission of the defence counsel in respect of the professional fee as the submission was not built on any foundation. The fact upon which the submission was premised was not pleaded and no evidence was led in respect of the professional fee by DW. In conclusion, the claimant urged the Court to grant all her reliefs. The defendant reacted by filing a reply on points of law. On the claimant’s issue 1 and 2, the defendant asserted that the crux of the claimant’s argument would appear to be that she was queried and she admitted being in breach of audit procedure but she was dismissed for corruption/corrupt act which she was not queried for nor investigated. That the claimant asserts based on the authority of Omman v. Ekpe [2001] 1 NWLR (Pt. 641) 365 at 374C that she has proved this fact on a balance of probability. To the defendant, the submissions of the claimant overlooks the point that in litigation it is the cause of action that determines the evidence that the claimant is to advance and the issue of preponderance of evidence only goes to the amount of evidence. That it is trite that a cause of action is the bundle or aggregate of facts in the relationship between the parties which the Court would recognize as enabling the claimant to enforce the claim against the defendant, citing Combined Trade Ltd v. All States Trust Bank Ltd [1998] 12 NWLR (Pt. 576) 56 at 64A. That the first responsibility of the claimant, therefore, is to allege in the statement of facts the bundle or aggregate of facts in the relationship between her and the defendant which gives rise to a legal right that the Court would recognize as enabling the claimant to enforce the claim. The second responsibility of the claimant is to present evidence that support and prove those facts. By the authority of Omman v. Ekpe (supra) the claimant has the burden of proving those facts on a balance of probability. Flowing from the above, that it is obvious that the claimant’s case is essentially that the defendant gave a reason for dismissing the claimant and in her view that reason is untenable. It is well settled that where an employer gives a reason or reasons for terminating an employee the onus on the employer is to establish that the reason(s) is/are within the terms of the contract of employment, referring to Daodu v. United Bank for Africa Plc [2004] 9 NWLR (Pt. 878) 276. That the claimant was dismissed under clause 15.0 of the Human Resources Policy Manual for “involvement in...corruption” in violation of the company’s code of integrity. To the defendant, if the claimant is challenging her dismissal, she has the responsibility to show that the reason given by the defendant for dismissing her is not recognized under her contract of employment. Regrettably, the case of the claimant is not that the reason for her dismissal is not incorporated in the terms of the contract of employment. Rather her argument is that she was not queried or investigated for “involvement in...corruption”. Put differently, the claimant’s case is that she was dismissed for the wrong reasons. The defendant went on that the claimant has fallen into the error of treating breach of audit procedure (which she admittedly she was queried for and investigated) as different from corruption. This error by the claimant stems from her misunderstanding of the meaning of the term “corruption”. The Black’s Law Dictionary (9th Edition) at page 397 defines corruption as follows – an impairment of integrity, virtue, or moral principle the act of doing something with an intent to give some advantage inconsistent with official duty and the rights of others; a fiduciary’s or official’s use of a station or office to procure some benefit either personally or for someone else, contrary to the rights of others. To the defendant, it is beyond argument that the actions of the claimant which she conveniently prefers to accept as breach of audit procedure satisfies all the elements of corruption defined by Black’s Law Dictionary above. That it does not hold water for the claimant to say the defendant did not establish that she also collected recharge cards like her two colleagues who were also dismissed. Corruption does not always involve collection of money, recharge card or some other property. According to Black’s Law Dictionary, corruption also involves doing something with an intent to give some advantage inconsistent with official duty or an employee using his/her office to procure some benefit either personally or for someone else, contrary to the rights of the employer. The defendant asked the Court to note that the query and the response to the query as well as the letter of dismissal were not written by lawyers but by lay persons who clearly understood what they were saying. Stripped of the technicalities, the action of the claimant in deliberately breaching audit procedure qualifies as corruption in breach of the company’s code of integrity and she was dismissed for the breach, short and simple. The defendant further submitted that even in the unlikely event that the reason given by the defendant for dismissal of the claimant is untenable, the dismissal of the claimant cannot be wrongful (or to borrow the expression of the claimant, illegal, unlawful, null and void) unless it is in breach of the contract, notwithstanding that the employer gave a totally untenable reason for the dismissal, citing Gateway Bank of Nigeria Plc v. Abosede [2002] 1 WRN 135. That the onus is on the claimant to establish that the defendant is in breach of the contract of employment. No reference has been made to any provision of the contract of employment which the defendant has allegedly breached. That the case of Omman v. Ekpe [2001] 1 NWLR (Pt. 641) 365 at 374C is, therefore, not helpful to the case of the claimant. Finally on issues 1 and 2, that it is not the case of the defendant nor is it the evidence of the defendant’s witness that the claimant was dismissed on the assumption that she collected recharge cards. On the claimant’s issue 3, the defendant pointed out that the claimant’s reasons for claiming entitlement to general damages is that the content of the letter of dismissal has prejudiced the claimant’s prospect of securing another job as no employer will be willing to employ an applicant that was dismissed on ground of corruption. That it is now settled that if there is a wrongful dismissal, the employer must pay an indemnity; but the indemnity cannot include compensation either for the injured feelings of the servant, or for the loss he may sustain from the fact that his having been dismissed of itself makes it more difficult for him to obtain fresh employment, citing Shell Petroleum v. Lawson Jack [1998] 4 NWLR (Pt. 545) 249. Apparently aware of the well laid down principles, laid down in cases like Chukwumah v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 512 and Shell Petroleum v. Lawson Jack [1998] 4 NWLR (Pt. 545) 249, relating to the award of damages in cases of wrongful termination of employment, the claimant sought to argue that recent decisions of this Court, especially in Industrial Cartons Ltd v. National Union of Paper and Paper Converters Workers [1978 – 2006] DJNIC 73 and Michellin (Nigeria) Ltd v. Footwear Leather and Rubber Products Senior Staff Association [1978 – 2006] DJNIC 90 have charted a new path from what the common law would normally allow as compensation or remedy for wrongful termination. To the defendant, the cases of Industrial Cartons Ltd v. National Union of Paper and Paper Converters Workers (supra) and Michellin (Nigeria) Ltd v. Footwear Leather and Rubber Products Senior Staff Association (supra) did not deal with award of general damages which is claimed by the claimant and at any rate, these decisions did not derogate or depart from the decisions of the superior courts in Chukwumah v. Shell Petroleum (supra) and Shell Petroleum v. Lawson Jack (supra). That this Court is, therefore, bound to follow these decisions. Regarding the claimant’s issue 4, the defendant stated that the claimant’s argument is that the terms of the letter of dismissal accepted by her do not include Court action to challenge the correctness or otherwise of her dismissal as the Court action was not listed as one of the items that the defendant is discharged from. To the defendant, the terms of the letter of dismissal accepted by her is wide enough to include a Court action to challenge the correctness or otherwise of her dismissal. For ease of reference, that the terms of the letter of dismissal accepted by the claimant are as follows – this letter discharges the company from all claims, monetary or otherwise, liabilities or obligations that you may have against it now or in the future that arises out of or in connection with your employment with the company. The defendant went on that it is evident from the above that the letter discharges the company from all claims, monetary or otherwise. That the Black’s Law Dictionary (supra) at pages 281 – 282 defines claim as follows: the aggregate of operative facts giving rise to a right enforceable by a court the assertion of an existing right a demand for money, property or a legal remedy to which one asserts as a right, especially the part of a complaint in a civil action specifying what the plaintiff asks for. To the defendant, clearly, by use of the phrase, ‘all claims’, the parties are deemed to capture and incorporate all the forms of claims defined above by the Black’s Law Dictionary. That this suit is accordingly caught by the terms of the letter of dismissal and the defendant is discharged from all the claimant’s claims, monetary or otherwise, in this suit. On the claimant’s issue 5, the defendant asserted that the claimant’s argument is that the defendant did not challenge or controvert the facts pleaded in respect of professional fees. Therefore, the claimant is entitled to special damages. To the defendant, it is trite that damages is always in issue and the defendant does not need to controvert the damages pleaded. The onus is always on the claimant to establish her entitlement to special damages. Furthermore, that the authorities cited by the claimant, to wit, Anazodo v. Pazmeck Inter Trade [2008] All FWLR (Pt. 432) 1201; [2008] 6 NWLR (Pt. 1084) 529, Uman v. Owoeye [2003] 9 NWLR (Pt. 825) 221 and Obasuyi v. Business Ventures Ltd [2000] 5 NWLR (Pt. 658) 668, are not employment cases which apply different principles and they are accordingly inapplicable to the claimant’s case. I heard learned counsel and considered all the processes in this matter. In considering the merit of the case, I must first state that contrary to Order 20 Rule 2 of the NIC Rules 2007, the numbering of the paragraphs of the defendant’s written address is repetitive in some respects. A look at the written address will show that at pages 7 – 10, we have paragraphs 8.10 – 8.20, while at pages 10 – 12 we again have paragraphs 8.10 – 8.20. As for the claimant, in her written address, aside from the fact that there are two paragraphs bearing 1.03, from paragraph 5.03, she jumped to paragraph 5.06. In other words there are no paragraphs 5.04 and 5.05 in her written address. Secondly, Exhibit C1 is the query issued to the claimant by the defendant. It is dated 9th August 2012. Although it is not signed, it is however referred to in paragraph 1 of Exhibit C2 (same as D3) dated 28th August 2012, the letter of dismissal. Exhibit C1 is same with Exhibit D1, the only difference being that on Exhibit D1, the claimant acknowledged receipt of it on 9.8.12. Since Exhibit C2 (D3) referred to Exhibit C1 and the claimant acknowledged receipt of it as Exhibit D1, I shall on that ground use Exhibit C1 (D1) for purposes of this judgment. The issue calling for the determination of the Court, given the complaint of the claimant, is that the claimant was queried for breach of audit procedure, which she admitted, but in her dismissal letter, she was dismissed for corruption. By this act, the claimant submitted that she was thereby denied fair hearing since she was not tried for corruption but for breach of audit procedure. To the claimant, all of this made her dismissal illegal, unlawful, null and void and for which her contract of employment was breached. In essence, this Court is called upon to decide whether breach of audit procedure approximates to corruption as to justify the dismissal letter issued to the claimant. While the claimant thinks that it does not, the defendant thinks otherwise. Alternatively, this Court is to decide whether, even if breach of audit procedure does not approximate to corruption, the dismissal of the claimant is nevertheless still valid. This is essentially the argument of the defendant, while the claimant posits otherwise on the ground that the two (breach of audit procedure and corruption) being different must be differently treated. The claimant had worked for the defendant. By Exhibit C1, after alluding to a discussion the claimant had with the defendant on 7th August 2012 where the claimant was said to have given verbal explanation, the claimant was queried and asked to explain in writing her involvement with the non-procedural issuance of certificates CN/000092432/001 and CN/000092433/001. Exhibit C1 proceeded to ask the claimant – What was the incentive for this trending unscrupulous behaviour? Also, justify why disciplinary actions should not be taken against you. By asking the claimant what was the incentive for her for this trending unscrupulous behaviour, Exhibit C1 simply set the tone that the non-procedural issuance of certificates CN/000092432/001 and CN/000092433/001 could only have been for corrupt reasons. The claimant replied the query vide Exhibit D2 wherein she asserted first that there was an urgency, and then that she was under pressure. She went on to “regret issuing the files before the usual pre-audit”. She realized her mistake and admitted it is a gross misconduct, promising not to be involved in such cases any more. So when Exhibit C2 (D3) was issued summarily dismissing the claimant, it asserted in paragraph 1 that the claimant admitted involvement in corruption and hence violated the defendant’s code of integrity rule on corrupt practices, the consequence of which by paragraph 2 falls under clause 15.0(v) of the Human Resources Policy Manual (Exhibit D10). Paragraph 3 then provided that the claimant is accordingly dismissed from the services of the defendant with effect from 31st August 2012, the date the claimant confirmed the acceptance of the terms and conditions of Exhibit C2 (D3). In her travails and given the evidence before the Court, the claimant was investigated alongside Charles Ozah and Ekene Odagu (the two that DW said collected recharge cards and from which the claimant must also have received recharge cards – hence the conclusion that the claimant was corrupt). Exhibit D4 also not dated but endorsed as received by Charles Ozah (although no date of the receipt is indicated) is the query to Charles Ozah. His reply to the query is Exhibit D5 and in it he acknowledged wrongdoing and then “begged” to be disciplined with minimal punishment in order to correct any past mistake. Exhibit D6 then dismisses him. Exhibit D7 is the query to Ekene Odagu. It is endorsed received by him on 09/08/2012. His reply to the query is Exhibit D8 and in it he referred to and reaffirmed his verbal confession, regretted his actions and pledged to be more careful and detailed in all his dealings henceforth. He then pleaded that the defendant should tamper justice with mercy. Exhibit D9 then dismisses him. In all three cases (the claimant’s and the two other cases of Charles Ozah and Ekene Odagu), a similar pattern evolves: the respective queries first referred to a verbal discussion between the parties, then a written acknowledgment of guilt by the party and then the dismissal even when the party pleads for mercy. All the three signed their dismissal letters confirming that they accept the terms and conditions of the dismissal letters, a key condition of which is that the dismissal letter discharges the company from all claims, monetary or otherwise, liabilities or obligations that they may have against the defendant now or in the future that arises out of or in connection with their employment with the defendant. In regretting their actions and promising not to repeat same, I get the feeling that the verbal discussions, the precursor of/prelude to the query promised some kind of lesser punishment if the parties confessed; only for them to get the ultimate punishment – dismissal – with the onerous terms that they were made to endorse as accepting. Clause 15.0(v) of Exhibit D10, under which the claimant was dismissed comes under “Disciplinary procedure” and provides as follows – Summary Dismissal: any conduct likely to endanger the lives or safety of others, or the Company’s property or operations may rank as serious misconduct. Examples of Serious Misconduct are: Sleeping on duty, drunkenness, stealing or fraud, dereliction of duty, using violence, smoking in prohibited areas, corruption, refusal to obey a lawful and reasonable order, gross insubordination, gross misuse of machinery or equipment, disregard of rules and regulations. These examples are not exhaustive. The point to note here is that by this provision corruption is just one example of serious misconduct. Since corruption is provided for separately as an example, does it approximate to the other examples in its character as corruption? While corruption is serious misconduct just as smoking is, can it be said that smoking is thereby corruption? The argument advanced by the defendant throughout its submissions equated breach of audit procedure with corruption. Under clause 15.0(v), disregard for rules and regulations is also serious misconduct. One would have thought that breach of audit procedure would fall under disregard for rules and regulations; but the defendant chose to dismiss for corruption. I do not think the defendant is right here and in equating corruption with breach of audit procedure. Under cross-examination DW testified that in subsequent investigation, they discovered acts of corruption but paragraph 11 of his sworn deposition states that the further investigation identified three persons (the claimant inclusive) as being involved in breach of audit procedure. DW went on that since two out of the three received recharge cards, they assumed that the third (the claimant) must have also received the recharge cards. DW continued that they actually could not establish that the claimant received recharge cards. In paragraph 13 of his witness sworn deposition DW alluded to the claimant alleging that she was put under pressure by Charles Ozah, yet under cross-examination DW testified that they could not determine what Ozah and Odagu gave the claimant or the exact nature of the pressure exerted on the claimant by Ozah and Odagu to make the claimant issue the RAR in question without following laid down procedures. To DW, Ozah and Odagu did not tell them that they gave something to the claimant and so the defendant could not establish that the claimant collected anything. This is the evidence before the Court. I agree with the claimant that having to find her culpable for corruption was based on an assumption. For all these reasons, I hereby find and hold that corruption is not the same thing as breach of audit procedure as the defendant argued in this case. The two are separate and distinct. The claimant cannot, therefore, be dismissed for corruption; and I so hold. Having found that the claimant could not have been dismissed for corruption, the question is whether her dismissal is nevertheless valid. The argument of the claimant here is that it is not since thereby she cannot be said to have been accorded fair hearing. The defendant on the other hand argued that the claimant was accorded fair hearing, citing Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) 624 SC, and that in any event the claimant discharged the defendant of all claims which must be read to include court actions. In making out her case, the counsel to the claimant had framed issue 4 as “whether having accepted the terms and conditions of the letter of dismissal dated 28th August 2012, the defendant is discharged from all claims, liabilities or obligations in connection with her claimant’s employment”. Counsel then submitted that – The claimant accepted the terms and condition of the letter of dismissal 28th August 2012, the defendant is discharged from all claims, liabilities or obligations these claims, liabilities or obligations does not include court action to challenge the correctness or otherwise of the dismissal of the claimant as court action was not listed as one of the items that the defendant is discharged from, and the claimant did not expressly stated that she has waived her constitutional right to seek redress legal and lawful redress in court against her unlawful dismissal. I really do not understand whether the counsel to the claimant is merely acknowledging wrongdoing of his client (the claimant) here but is trying to wriggle out on the ground of a technicality or counsel is insufficiently tactful in language as to properly express himself. For how else am I to explain the poor language exhibited by counsel in arguing issue 4. If the claimant accepted the terms and conditions of the letter of dismissal dated 28th August 2012, and thereby discharged the defendant from all claims, liabilities or obligations, how can the claimant turn around and say that discharge does not include court action? Where else are claims claimed and liabilities and obligations established or ascertained if not at the Court or through court actions? Regarding the argument that fair hearing was not accorded her, I agree with the defendant that fair hearing is opportunity; and Imonikhe v. Unity Bank Plc held that a query given and answered satisfies the requirement of fair hearing. Even the law acknowledges that an employee may be dismissed and the dismissal justified with reasons that are unearthed much later. In ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA, it was held that an employer, when he dismisses his employee, need not allege any specific act of misconduct on the employee’s part as the ground for the dismissal. That it is sufficient if such a ground did exist, whether or not the employer knew of it at the time of the dismissal. Therefore, it is not a requirement of the law that the nature or particulars of the gross misconduct is to be disclosed at the time of the dismissal. The case went on to hold, following the earlier Supreme Court decision in Ajayi v. Texaco Nig. Ltd [1987] 3 NWLR (Pt. 62) 577, that there is no fixed rule of law defining the degree of misconduct which would justify a dismissal. That it is enough that the conduct of the servant is of grave and weighty character as to undermine the confidence which should exist between him and the master. That working against the deep interest of the employer clearly amounts to gross misconduct entitling the employer to peremptorily dismiss the employee irrespective of the conditions of service. CCB (Nig.) Ltd v. Nwankwo [1993] 4 NWLR (Pt. 286) 159 CA also held that an act which amounts to misconduct warranting a dismissal is generally an act of willful disobedience to lawful and reasonable orders, misconduct of the master’s business, neglect, incompetence and other conduct incompatible with or prejudicial to the master’s business as well as conduct incompatible with the faithful discharge of his duty to the master. Damisa v. UBA Plc [2005] 9 NWLR (Pt. 931) 526 CA then held that negligence even without a criminal import can be so gross as to be misconduct of a kind which justifies dismissal. I alluded earlier to the fact that breach of audit procedure, for which the claimant was dismissed, is same with disregard of rules and regulations. Clause 15.0(v) of Exhibit D10 brands disregard of rules and regulations as serious misconduct. The claimant admitted that she breached audit procedure rules meaning that she disregarded rules and regulations of the defendant. In essence she admitted breaching clause 15.0(v) of Exhibit D10. This means that she acted in a manner prejudicial to the interest of the defendant and so the fact of her dismissal is justified. She cannot accordingly complain that the dismissal is illegal, unlawful, null and void. The weight of the judicial authorities does not support her claim. In paragraph 6.02 of her written address, and in making a case for general damages, the claimant had complained that “the content of the dismissal letter had prejudiced [her] prospects of securing another job as no employer will be willing to employ an applicant that was dismissed on the ground of corruption”. Under oath, the claimant testified that she is a Ticketing and Reservation Officer with Beverly Travels Ltd, Broad Street, Lagos Island, Lagos. So I wonder how the content of the dismissal letter prejudiced her prospect of securing another job. In, therefore, reacting to the claimant’s claim for general damages, the defendant in paragraph 8.37 of its written address alluded to the duty of the claimant to minimize the damages which she sustained by the wrongful dismissal. In CCB (Nig.) Ltd v. Nwankwo [1993] 4 NWLR (Pt. 286) 159 CA and Ado v. Comm., Works, Benue State [2007] 15 NWLR (Pt. 1058) 429 CA, it was held that an employee dismissed in breach of his contract of employment cannot choose to treat his contract as subsisting and sue for an account of profits which he should have earned to the end of the contractual period; rather he must sue for damages for wrongful dismissal and must mitigate those damages as far as he reasonably can. In the instant case, the claimant in reliefs 3, 5 and 6 praying for her salary and entitlement up till date; reinstatement to her duty post; and N25 Million as general damages for unlawful dismissal and breach of contract respectively. The point here is that even if the claimant were to succeed in her action against the defendant, she would not be entitled to the monetary claims she makes; at least not in the manner and the quantum she made. The claimant claimed for solicitor’s fee as special damages, referring to Musa v. Yerima [1997] 7 NWLR (Pt. 511) 27 and Anazodo v. Pazmeck Inter Trade [2008] All FWLR (Pt. 432) 1201 at 1217 – 1218 E – D. The defendant in reaction cited Guinness Nigeria Plc v. Nwoke (2000) 12 NWLR (Pt. 689) 135 which held that that it is unethical and an affront to public policy for a litigant to pass on the burden of his solicitor’s fees to his opponent in a suit. I agree with the defendant’s submission that it is unethical and an affront to public policy for a litigant to pass on the burden of his solicitor’s fees to his opponent. The claim for solicitor’s fees according fails. It was the case of the defendant that the claimant could not pray for a declaration and order that her dismissal was illegal, unlawful, null and void since she was not a statutory employee; and a finding of illegality and unlawfulness of the dismissal would mean reinstating the claimant to her duty post. The Supreme Court in BCC Plc v. Ager [2010] 9 NWLR (Pt. 1199) 292 made the distinction between mere wrongful dismissal and an invalid or null dismissal, While the former entitles the employee to payment in lieu of notice, the latter signifies that there was no dismissal at all since what the employer did is a nullity before the law. I held already that the dismissal of the claimant is valid. This means that the contention of the defendant that the claimant cannot pray for the declaration and order that her dismissal is illegal, unlawful, null and void goes to no issue for present purposes. On the whole, the claimant’s claims must fail. They are accordingly dismissed. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip