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REPRESENTATION O. A. Egwuatu for the Claimant. Olawale Ajetunmbi for the Defendant. JUDGMENT On the 12th day of July 2013, the Claimant in this case approached the Court through his Counsel and sought the following reliefs: a. A declaration that the suspension and subsequent dismissal of the Claimant on allegation of fraud without any lawful cause and without fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria as amended by the Defendant in breach of the Defendant’s Conditions of Service Manual is illegal, unjust and unlawful and therefore null and void. b. An Order reinstating the Claimant to his position as Inventory Officer in the Sales and Distribution Division of the Defendant with the entire perks of office. c. An Order directing the Defendant to pay to the claimant his arrears of salary in the total sum of N261,204.91 (Two Hundred and Sixty-One Thousand, Two Hundred and Four Naira, Ninety-One Kobo) only per month from the 1st day of April 2009 till judgment. d. In alternative to reliefs b and c above, an order directing and compelling the Defendant to pay the Claimant the total sum of N100,000,000.00 (One Hundred Million Naira) only for unlawful and illegal dismissal. e. An order directing the Defendant to pay to the Claimant the total sum of N20,000,000.00 (Twenty Million Naira) only for the emotional trauma, pain and embarrassment the action of the Defendant caused the Claimant. f. The cost of this proceedings including the sum of N2,000,000.00 (Two Million Naira) only as solicitors fees for prosecuting the action. The Complaint was accompanied by statement of facts, list of witness, list and copies of documents to be relied upon at trial. In response to the case of the Claimant, Defendant filed its statement of defence and counterclaim dated 3/10/13 together with the requisite frontloaded processes. The Defendant Counter claimed as follows: i. A Declaration that the Claimant converted 500 pieces of =N=1,500 recharge cards belonging to the Defendant/Counter Claimant, as admitted by the Claimant; ii. An Order directing the Claimant to pay the Defendant/Counter Claimant the sum of =N=750,000.00 (Seven Hundred and Fifty Thousand Naira) being the total value of the 500 pieces of =N=1,500 recharge cards unlawfully taken by the Claimant from the Defendant/Counterclaimant; iii. The sum of =N=5,000,000.00 (Five Million Naira) as damages for the wrongful conversion of the Defendant/Counterclaimant's 500 pieces of =N=1,500 recharge cards by the Claimant iv. Interest on the sum stated in (i) and (ii) above at the rate of 21% per annum from May 19, 2000 till the entire judgment sum is fully paid (v). Cost of instituting and maintaining this action in the sum of =N=5, 000,000 (Five Million Naira). Upon being served the Statement of Defence and Counterclaim, the Claimant filed his Reply to Statement of Defence and Defence to Counter claim dated 25/10/13. The Claimant's case is that he was employed by the Defendant vide a letter of employment dated 10th October 2002 (Exh. BE1) after necessary pre-employment formalities, and that he dully accepted the offer and started work. According to Claimant, he satisfactorily performed his duties to the admiration of the Defendant which after the Claimant's probationary period confirmed the Claimant's employment with effect from the 13th April 2013 (Exh.BE3). Climant averred that he worked for the Defendant between 2002 and 2009; that during this period he never received query or warning; that he was so good at his work that he was regularly sent on trainings, given upward review of salary every year, earned bonus for surpassing targets and generally commended for dedication to duty. Claimant averred that on 15/4/09 out of the blues and without being informed of any wrong doing he was suspended from his duty 'pending the outcome of the investigation conducted by the Business Fraud Unit'; that he was told he 'will be informed of the date of a formal hearing at a later date' and that he was suspended 'in line with section 12.8.6 of the Disciplinary Code'. Claimant stated that during the period he was on suspension he was not informed of what he did or his role for whatever offence that he must have committed, that he was not invited or informed of a formal hearing and that he was on 19/5/09 dismissed vide the Defendant's letter dated 19/5/09 without following the procedure outlined in the Condition of Service Manual of the Defendant (Exh.BE17) which together with the Claimant's letter of employment regulate the contract between the parties. hence this action. The Defendant's case on the other hand is that it employed Claimant and sent him on trainings as part of its desire to project the Claimant effectively for his job and for his exceptional performance; that trainings and workshops were not exclusive to the Claimant; that rather Claimant and other staff of the Defendant were sent on trainings as part of the Defendant's policies on employee value proposition. Defendant further averred that salary increment was part of its policy of employee motivation scheme for its entire staff; that increment was not exclusive to the Claimant and that other employees were give bonuses, service recognition awards and that such incentives were not impediment to the discipline of any erring staff. According to the Defendant, contrary to the Claimant's allegation that he was not aware of the offence against him, there were escalating cases of missing recharge cards in the inventory unit to which the Claimant belonged; that in particular, a box containing 500 pieces of =N=1,500 recharge cards was found empty and that Defendant successfully traced same to the Claimant who was subsequently confronted by the Defendant. According to the Defendant, Claimant admitted that he was always conveying the recharge cards through his diary and shirts on a daily basis since February 2009 and that he made a total sum of =N=500,000 from the sale of the cards. Defendant stated that Claimant's detailed, handwritten and signed response was made on 15/4/09 the same day the Claimant was suspended before his subsequent dismissal; that the Claimant also pleaded for leniency and that he was later dismissed summarily as his services were no longer required in view of the misconduct. Defendant further averred that Claimant had full knowledge of the reason for his dismissal; that he was given fair hearing and that there was due compliance with the Defendant's conditions of service manual in the dismissal of the Claimant. Defendant urged the Court to dismiss the Claimant's claim for being frivolous, gold-digging and a calculated attempt to exploit the Defendant. In its Counterclaim, Defendant stated that the Claimant took 500 pieces of =N=1,500 recharged cards and converted them to his use without the Defendant's knowledge and approval; that by taking the recharge cards and selling them, the Claimant exercised a right that is inconsistent with that of the Defendant over the recharge cards. Defendant therefore urged the court to grant the counter claim in the sum of =N=750,000 )the total value of the cards) and damages for conversion. In his reply to Defendant's Statement of Defence and Counterclaim dated 25/10/13, Claimant denied knowledge of the missing recharge cards in the inventory and his confrontation by the Defendant. Claimant denied admitting to taking the Defendant's recharge cards and also denied making the confessional statement dated 15/4/09 as stated by the Defendant. The hearing of this case commenced and closed on 25/11/13. At the hearing Claimant testified as a lone witness in his case as CW1. Claimant tendered 18 documents as Exhibits - 17 of them were admitted as Exhibits - Exh. BE1-BE12 and Exh. BE14-BE18. Doc. 13 was tendered and marked Tendered & Rejected. Defendant also called only one witness DW1-Mrs. Nwamaka Okey-Aguoru who testified on oath and tendered one exhibit - Exh. D1. In his evidence-in-chief CW1 adopted his written witness statement on oath dated 12/7/13. Witness tendered 18 documents out which 17 were admitted as exhibits and the 13th document marked Tendered & Rejected. He urged the court to grant his prayers. Under cross examination, CW1 said he made reference to Daynat Nig. Ltd as the Company to which the stolen cards were sold; that he was not involved in the theft of any cards that were sold to Daynat Nig. Ltd. He said he was taken to Ikoyi Police Station; that a Security Manager of the Defendant came there and asked the Divisional Police Officer if he (Claimant) had confessed and that he stated that he knew nothing about the stolen cards; that as Inventory Officer his job schedule involved treating job orders on a daily basis with trade partners, taking care of environment, liaising with his supervisor on matters; that he has access to the recharge cards; that he was not aware of reported cases of missing recharge cards in the store before he was dismissed and that he was not aware of any investigation into missing recharge cards. Claimant stated further that he was dismissed in May 2009; that this action was filed in July 2013; that he had contacted human rights bodies which referred him to the Office of Public Defender at the Lagos State Ministry of Justice; that he was not dismissed by the Defendant because he took Defendant's recharge cards and that he did not plead for any leniency with the Defendant to persuade them from prosecuting him. In re-examination, CW1 stated that the issue of recharge card occurred for the first time at the Police Station after he had been given the letter of dismissal. Defendant opened its case on the same day by calling Mrs. Nwamaka Okey-Agwor as its sole witness. DW1 while being led by counsel adopted her written witness deposition dated 3/10/13 as her evidence in this case and tendered Exh. D1. Under cross examination, DW1 stated that she did not know how many years the Claimant had worked with the Defendant; that she could not remember the year the Claimant was employed; that Claimant was dismissed in 2011 and that Claimant was never issued a query throughout the period he worked with the Defendant. Witness stated that Claimant's salary was increased annually in line with Defendant's standard policy; that salary increase is subject to Defendant annual performance and that she did not know if it was the policy of the Defendant to continually annually increase the salary of non-performing staff. According to DW1 she was aware that the Defendant continued to send Claimant on trainings; that staff are not recommended for trainings because of their performance; that staff training is part of the standard practice of the Defendant irrespective of the performance of staff; that she was aware that Claimant continuously earned bonuses from the Defendant. DW1 stated that she was aware of the Conditions of Service Manual of the Defendant as forming part of the conditions of service of employees; that the Manual contained disciplinary procedure for an erring staff. Witness testified that in relation to allegation of theft, the staff concerned will be questioned and invited for enquiry; that the invitation will be in writing informing the staff of the allegations against him; that Claimant was issued a written invitation; that she did not have a copy of the said invitation with her and that same was not mentioned in the Defendant' Statement of Defence. Witness further stated that a panel of investigators would ordinarily be set up; that no such panel was set up in the instant case; that no report of any investigation was prepared or given to the Claimant; that a query was issued to the Claimant; that no warning was issued to the Claimant and that the disciplinary procedure of the Defendant was not followed in the instant case. She stated that no formal disciplinary hearing was followed and that there was no formal disciplinary hearing because the Claimant had admitted guilt of the offence. DW1 stated further that the name of the Defendant was not written on Exh. D1; that no name of any security agent is written on the heading of Exh. D1; that Exh. D1 is not addressed to anybody or person; that Exh. D1 was not counter signed neither did it contain any cautionary statement. According to her, since the Claimant was dismissed Defendant, had not filed any counter claim against him until now. Finally, witness testified that Claimant was driven to the Police Station after being served dismissal letter; that she did not know how many days Claimant was detained at the Police Station; that she was not aware if the Claimant was charged to Court by the Police and that she was not aware if the Claimant was convicted for any offence. At the completion of hearing, learned counsel were directed to file their final written addresses. In his final written address dated and filed 16/12/13, learned Counsel to the Defendant/Counterclaimant submitted 2 issues for consideration as follows: 1. Whether the Defendant was wrong in summarily dismissing the Claimant particularly in view of the documentary evidence of the Claimant's admission of misconduct. 2. Whether the Defendant has proved its counter-claim against the Claimant on the preponderance of evidence. On issue 1, counsel submitted, relying on Union Bank of Nigeria Ltd v. Ogboh (2005)2 NWLR (Pt. 380) 647 at 669 that the law is elementary that an employer has the power to summarily dismiss an employee for gross misconduct without any notice or wages and benefits and that there is unanimity of judicial decisions that any conduct of an employee that undermines the relationship of confidence which should exist between master and servant is a gross misconduct, referring to Professor Dupe Olatunbosun v. NISER (1998)3 (Pt.80) 25 at 31. Learned Counsel submitted that appropriation of employer's property by an employee is an act of gross misconduct which justifies dismissal of employee relying on Osakwe v. Nigerian Paper Mill Ltd (1998)19 NWLR (Pt.568) 1 at pp. 13-14 and that the law is settled that documentary evidence is the best form of evidence; that where an employee admits the commission of a misconduct, the need for proof of same no longer arises even where the misconduct amounts to a criminal offence relying on Federal Civil Service Commission v. Laoye (1989)2 NWLR (Pt. 652 at 679, Jirgbagh v. UBN Plc (2000)17 WRN 18 at 35 and Salihu v. Fougerolle-Fougerolle (Nig.) Plc (2003)7 NWLR (Pt. 818) 1 at 16-17. Learned Counsel further submitted that DW1 did not contradict or retract her evidence that the Claimant made Exh. D1 admitting taking Defendant's recharged cards even under cross examination and that this piece of evidence was not discredited by the Claimant and that the only thing the Claimant said in relation to the missing recharge cards was a mere denial of taking same. According to learned Counsel, Exh. D1 was corroborated by the oral evidence of DW1 vis a vis the oral evidence of the Claimant denying the exhibit. Counsel urged the Court to resolve this issue in favour of the Defendant especially in the light of Exh. D1 pointing out that the law accords a measure of primacy to documentary evidence as against oral evidence, Counsel cited Ogbe v. Asade (2009)18 NWLR (Pt. 1172) 106 at 131.Counsel submitted that mere denial of making Exh. D1 is not sufficient to whittle down the evidential value of the document. It was the argument of learned counsel that in relation to fair hearing, the law is that in a master/servant relationship, the employee need not be heard orally before being dismissed for misconduct or his employment terminated and that where a misconduct amounts to a criminal offence, an employer need not report the misconduct to the Police or await prosecution of the employee before the employer can summarily dismiss an employee for gross misconduct. Counsel cited Yusuf v. Union Bank of Nigeria (1996)6 NWLR (Pt. 457) 632 and Imonikhe v. Unity Bank Plc (2011)12 NWLR (Pt. 1262) 624. It was the contention of the learned Counsel that the Defendant rightly dismissed the Claimant without notice since dismissal as a disciplinary measure does not entitle the affected staff to any notice. He urged the Court to dismiss the case of the Claimant in its entirety. In relation to relief A of the Claimant for 'a declaration that the dismissal of the claimant is illegal, unjust and unlawful and therefore null and void', Counsel, relying on Osisanya v. Afribank (Nig.) Plc 92007)6 NWLR (Pt. 1031) 565 at 581 submitted that the court cannot make such a declaration and that the employee's remedy lies only in damages where the termination of the appointment or dismissal is held to be wrongful. With respect to Reliefs B and C of the Claimant which is for reinstatement and for arrears of salary from the period of his dismissal, Counsel submitted that both reliefs are unknown to law since the relationship between the parties is one simply of master/servant and that a court will not impose a willing servant on an unwilling master. Counsel cited Osisanya v. Afribank (Nig.) Plc (supra) and Olatunbosun v. NISER Council (1988)3 NWLR (Pt. 80) 25. The alternative Relief D sought by the Defendant was for =N=100 Million for 'illegal and unlawful dismissal'. Counsel submitted that this alternative relief cannot be granted since it has been argued that the dismissal of the Claimant was neither wrongful nor illegal as it was done in accordance with the law and agreement between the parties. Counsel argued further that in any event that the measure of damages in case of wrongful dismissal is to be determined by the length of notice necessary and that it was not open to the Claimant to claim just any amount as damages for wrongful dismissal. Counsel cited G.B. Olivant (Nig.) Ltd. v. Agbabiaka (1972)2 SC 137. With regard to Relief E for =N=20 Million for 'emotional trauma, pain and embarrassment the action of the Defendant caused the Claimant', Counsel submitted that this relief is strange and not grantable under the law of employment; that it offends against the age-long principle on measure of damages for wrongful dismissal and is also not recognised under the terms and conditions governing the employment contract between the parties, relying on Arison Trading Co. Ltd. v. Military Governor, Ogun State (2009)All FWLR (Pt. 496) 1819 at 1828. Learned Counsel urged the Court to dismiss this claim on the ground, inter alia, that Claimant cannot claim for unlawful dismissal on one hand and then claim for emotional trauma and personal injury allegedly resulting from the dismissal on the other and that the basis of both reliefs are the same. Counsel further submitted that Relief E of the Claimant is statute-barred and not maintainable. According to Counsel. Relief E is Claimant's claim for damages for personal injury arising from the dismissal of the Claimant on 19/4/09; that Claim has not beyond 3 years to institute the action (i.e on or before April 19, 2012); that the action was instituted on 12/7/13 more than 3 years after the accrual of cause of action. Counsel therefore submitted that this claim of the Claimant is caught by section 9 of the Limitation Law, Laws of Lagos State, Cap. L67, Laws of Lagos State 2003 which limits the time to bring such an action to not more than years of accrual of cause of action. On Relief F, which is for Claimant's Solicitor's fee and cost of action, Counsel submitted that Claimant's Solicitor's fee cannot be forced on the Defendant as there is no privity of contract between the parties in relation to that. Counsel relied on C.A.P. Plc v. Vital Investment Ltd (2006)6 NWLR (Pt. 976) 220 at 264. Counsel further submitted that indeed, Relief F is against public policy as the law does not impose the obligation for payment of a party's Solicitor's fee on the adverse party and that it is both unethical and an affront to public policy to pass on the burden of Solicitor's fee to the other party citing Guiness (Nig.) Plc v. Nwoko (2000)15 NWLR (Pt. 689) 135. Learned Counsel therefore urged the Court to resolve the first issue in favour of the Defendant and dismiss the claim of the Claimant. On Issue 2, Counsel submitted that the tort of conversion is constituted by an act of interference with a person's personal chattel without lawful excuse. Counsel cited Boniface Anyika & Co. Lagos Nigeria Ltd v. Uzor (2006)All FWLR (Pt. 334) 1836 at 1849. Counsel adopted his submission in issue 1 and stated that the evidence of DW1 remains uncontroverted and further drew the attention of the Court to Exh. D1. He stated that Claimant only denied knowledge of missing recharge cards as well as making Exh. D1. In weighing the evidence of the parties, Counsel urged the Court to consider the nature of Exh. D1 as a documentary evidence which contained details of the step-by-step procedure adopted by the Claimant in taking the 500 recharge cards. Counsel stated that the best proof of the contents of a document is the document itself and that no oral evidence will be allowed to contradict the contents of a document citing Egharevba v. Osagie (2009)18 NWLR (Pt. 1173) 299 at 327.Learned counsel therefore submitted that the Defendant has proved the tort of conversion citing Boniface Anyika & Co. Lagos (Nig.) v. Uzor (supra) and urged the Court to grant its counter claim against the Claimant. Finally Counsel urged the Court to resolve the 2 issues stated for determination in favour of the Defendant and against the Claimant. Counsel urged the Court to dismiss the claims of the Claimant and grant the Counter-claim as proved by the Defendant. Claimant's final written address was dated and filed 27/1/14. In it learned counsel submitted 2 main issues for determination as follows: i. Whether the Claimant has proved its claim to be entitled to the reliefs sought; and ii. Whether the Defendant has proved its counter-claim to be entitled to the reliefs sought in the counter-claim. On issue 1, Counsel argued that while it is correct to say that the Defendant has the power to suspend and even dismiss the Claimant, the dismissal must follow the due process and offence warranting dismissal must be proved. Counsel submitted that such dismissal must comply with the provisions of Exh. BE1 (Claimant's letter of employment) and Exh. BE17 (the Defendant's Conditions of Service Manual). It was the argument of the learned Counsel that the procedure for discipline of staff as provided in Exh. BE17 was not followed and hence Claimant was denied fair hearing. Counsel submitted, relying on NEPA v. Adeyemi (2007)3 NWLR (Pt. 1021) 315 that not having confronted the Claimant with Exh. D1 under cross examination to show that his denial in court was not true, they are estopped from saying the Claimant admitted guilt. According to learned Counsel, it is the law that where dismissal of an employee is based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand, relying on the Court of Appeal decision in Azenabor v. Bayero University, Kano (2009)17 NWLR (Pt. 1169) 96. Counsel submitted that the offence for which the Claimant was dismissed (stealing of recharge cards) is not within the jurisdiction of the Defendant and that even if it is, the Defendant failed to afford the Claimant opportunity of being heard before he was dismissed, citing Uzondu v. UBN Plc (2009)5 NWLR (Pt. 1133) 1 and that it is only a court of competent jurisdiction that can determine based on the evidence led before it whether or not fraud, which is a felony, had been committed relying on A.G Kwara State v. Ojulari (2007)1 NWLR (Pt. 1016) 551. Learned Counsel submitted that it is not just that the Claimant was not prosecuted for the alleged theft of the Defendant's recharge cards, claimant was not even confronted with the allegation so as to afford him the opportunity to react to the allegation. On page 16 paragraph 8.16 of his final written address, learned Counsel submitted that 'exhibit D1 was not signed by the parties in this suit, and that all the arguments, submissions together with the authorities of the Defendant's counsel as contained in paragraphs 5.1.26 to 5.1.42 of his brief ought to be discountenanced for being irrelevant and misplaced'. Counsel therefore urged the Court to resolve this issue in favour of the Claimant and hold that the Claimant is entitled to the reliefs sought. On Issue 2, Counsel submitted that from the totality of the evidence before the Court, the Defendant/ Counter Claimant has failed woefully to prove its counterclaim and thus not entitled to the reliefs sought. According to Counsel, the proof required of the Counter Claimant is one of proof beyond reasonable doubt. Counsel referred to Akpo v. State (2007)2 NWLR (Pt. 1019) 500 . Counsel adopted his submission regarding Exh. D1 and added that that Exhibit cannot be used to establish the guilt for all the defects n the said exhibit. These defects, according to Counsel include (i) denial of the document by the Claimant; (ii) the document was not addressed to the Defendant, any staff of the Defendant or a panel of the Defendant (iii) there is no cautionary statement on the document, (iv) the document was not addressed to the Police or any security agency (v) and it was not counter signed by any person or authority. Learned counsel urged the Court to hold that the Claimant has proved his claim before the Court to be entitled to the reliefs sought and that the Defendant has failed to prove the counter claim as sought. The Defendant/Counter Claimant filed a Reply on Points of Law dated and filed 10th February 2014. The document, an 18-page document, is more or less a re-argument of the earlier one submitted by Counsel. Repeating the content of same will thus tantamount to a mere repetition. I therefore elect not to do so. I have had sufficient time to review and i have reviewed all the processes filed in this case . I have also listened attentively, with sufficient understanding to the submissions of learned counsel as well. Having done so, i have come to realise that the issues raised for determination by Counsel on either side could be narrowed down to mainly two. I have therefore set down these 2 issues for the determination of this case as follows: 1. Whether the dismissal of the Claimant by the Defendant has any legal basis. 2. Whether the Defendant/ Counter Claimant is entitled to its counter claim. On Issue 1, the law now appears elementary that in a master/servant relationship, there is a general power reposed on the employer to discipline any of its employees. The nature of the discipline varies. It may be a verbal or written warning, suspension, termination of employment or in extreme cases outright dismissal depending, of course, on the gravity of the failings of the employee concerned. In relation to termination and dismissal, it may be with or without the requisite notice. Indeed, an employer need not offer any reason as to why he is dispensing with the services of the employee, see Idoniboye-Obu v. NNPC (2003)1 SCNJ 87 at 105 per Uwaifor JSC. It is also the position of the law that an employer may summarily dismiss an employee for gross misconduct and that it is sufficient that such conduct of the employee must be of such grave and weighty character as to undermine the relationship of confidence which should exist between the master and the servant. The apex Court said this much in Olatunbosun v. NISER (1998)3 NWLR (Pt. 80) 25 at p. 31. Now coming to the instant case, Claimant was employed by the Defendant by Exh. BE1 on 10/10/02. He was dismissed by a 4-paragraph letter Exh. BE12 dated 19/5/09. Two paragraphs of Exh.BE12 are important for the understanding of this case. I quote paragraphs 2 and 3 of the document as follows: 'In line with the relevant provisions of the letter and the company's terms and conditions of service, please be informed that the company no longer requires your services with effect from May 19, 2009'. 'In line with the Company Conditions of Service Manual Section 12.12.2, no benefit shall accrue to you'. Now to find out the relevant provisions of the letter, a recourse is had to Exh. BE1- the letter of offer of employment. paragraph 8 of that Exhibit deals with Termination of employment. Paragraph 8.1 states as follows: 'The Company reserves the right to terminate your employment with or without notice, at any stage prior to termination date if you commit any serious or persistent breach of any of the provisions of this agreement, MTN Nigeria's Disciplinary Code, or any of your conditions of employment or are guilty of any misconduct or neglect of your duties or fail to carry out any of duties in a fit and proper manner or fail to give your full time and attention to the business of the Company or are guilty of any other criminal offence other than an offence which in the opinion of the Company, does not affect your position as an employee, or are guilty of any other conduct which will justify summary termination or termination on notice in law. Such grounds shall give rise to your summary termination'. 8.2. states thus: 'In addition, in the event that you are found guilty of any misconduct or malperformance or for any reason become unable, in the reasonable opinion of the Company, to perform your duties, adequately by reason of ill health or incapacity which endures for an excessive period (in the opinion of the Company), the Company shall be entitled to terminate your employment by giving 30 (thirty) day's written notice'. It is apparent that Exh. BE 10 did not give any reason for the dismissal of the Claimant. It merely referred to the letter of employment given to Claimant. Paragraph 3 of Exh. BE 12 also referred to Section 12.12.2 of the Company Conditions of Service Manual which is Exh. BE 17. The said section 12.12.2 states that - 'Where an employee is dismissed, no benefit shall accrue to such an employee notwithstanding the number of years he/she has spent with the company'. Earlier in 12.12.1 of Exh. BE 17 it is provided that - 'An employee found guilty of misconduct or criminal offence such as fraud, stealing, murder and other serious offences, shall be dismissed'. Under the definition section of Exh. BE 17 'misconduct' is defined in 12.6.1 'an action of omission or commission by an employee, which is deemed to have contravened the company policies, regulations, and contract of employment but is yet to be ascertained due to on-going investigations'. Counsel to the Claimant had urged the Court to discountenance the contents of Exh. D1 - the alleged written confession of the Claimant to taking the recharge cards of the Defendant.. It is important to point out here that Defendant did not at any time in the course of this proceedings and in any of its pleadings use the word steal or allege that Claimant stole its recharge cards. The words used all along was took or taking or converted. One of the beauties of the frontloading system in our present administration of justice is that by it either party to a case is aware of the evidence to expect at the trial. The system prevents trial by ambush and thus enables each party to adequately prepare to meet the case of the other party. Now Exh. D1 was frontloaded. Thus Claimant was aware that he would be confronted with that document. Yet while being led in evidence in chief by Counsel the proceedings was conducted in total oblivion of the existence of that important document. Not a single allusion was made to it. In relation to learned Counsel's submission that Defendant should have confronted the Claimant with that document at trial, it is my opinion that a Counsel is entitled to conduct his case in the best form and manner that meets the interest of his client. A major argument of the learned Counsel to the Claimant was that the Defendant failed to follow the disciplinary procedure as contained in Exh. BE 17. In that respect i found DW1 a credible witness. I also found her testimonies on oath believable when she stated that because the Claimant had admitted guilt of the offence there was no need for formal disciplinary hearing. I evaluate Exh. D1 and i believe its content as having been made by the Claimant contrary to his assertion. Counsel to the Claimant had also argued on page 16 paragraph 6.16 of his final written address that the said exhibit was not signed by any of the parties to this suit. Again i found that submission rather ridiculous for not only did the document contain details of the Claimant, it was indeed signed by the Claimant after writing his name. Aside from this, yet another ground for believing that Claimant made the said exhibit is borne out of the signature on the document. It appears to me that the signature on the Exhibit and the signature on the Claimant's written Statement on Oath dated 12th May 2013 are one and the same. For this Court to therefore allow the Claimant to vary and contradict Exh. D1 by his oral testimony will amount to showing a discourtesy to a long line of judicial authorities of the apex court in the land on such matters. This Court in particular and any lower Court for that will not embark on such a dangerous venture. On the argument that Claimant was denied fair hearing in presenting his case especially by the Defendant not complying with its set down disciplinary procedure, i find and hold that there is evidence before me that the Claimant was confronted with the allegation of misconduct and that that allegation led to Claimant writing Exh. D1. This, i find, satisfied the requirement of fair hearing, see the Supreme Court of Nigeria per Rhodes-Vivour JSC in B.A. Imonikhe v. Unity Bank Plc (2011) LPELR 1503. It was the submission of learned Counsel for the Claimant that as the allegation against the Claimant bordered on crime of stealing the law is that Claimant must first be tried by a court of competent jurisdiction and convicted before his dismissal could stand, citing Federal Civil Service Commission v. Laoye (supra). That proposition no longer represents the position of the law. For in Yusuf v. Union Bank of Nigeria (supra), the court was emphatic in stating that 'It is not necessary, nor is it a requirement under section 33 of the 1999 Constitution that before an employer summarily dismisses his employee from his services under Common Law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality...'. The same position of the law was restated by the same court in Arinze v. First Bank (Nig.) Ltd (2000)1 NWLR (Pt. 639) 78. It is only where an employer relies on accusation of crime to dismiss an employee that such must be proved beyond reasonable doubt in a court of competent jurisdiction before an employer can so rely on it, see Imonikhe v. Unity Bank Plc (supra). The bottom line of the foregoing is that i resolve this issue in favour of the Defendant and againt the Claimant and hold that the dismissal of the Claimant by the Defendant is justified in law. On issue 2, one form of conversion is where there has been a positive and unequivocal wrongful act of dealing with goods in a manner inconsistent with the owner's rights and an intention in so doing to deny the owner's right or to assert a right inconsistent with them, see 7-Up Bottling Company Ltd & Ors. v. Abiola and Sons Bottling Co. Ltd (2001)LPELR-1 (SC). I believe the evidence of DW1. I also believe the content of Exh. D1. The oral evidence of the Claimant to discredit the content of Exh. D1 is certainly unacceptable in the light of the prevailing judicial authorities on the weight to be attached to a documentary evidence vis-a-vis an oral evidence. By Exh. D1, Claimant exercised rights over the recharge cards of the Defendant he took without the consent of the Defendant, and by selling them, Claimant indeed sought to deny the Defendant its right of ownership over the property in the recharge cards. I thus resolve the second issue in favour of the Defendant and hold that the Defendant is entitled to the counter claim sought. Finally and for the avoidance of doubt, the 2 issues set down for determination in this case are resolved in favour of the Defendant and against the Claimant. Claimant's claims are dismissed in their entirety as lacking in merit. Claimant shall, within the next 30 days, pay to the Defendant the sum of Seven Hundred and Fifty Thousand Naira (=N=750, 000.00) only being the exact value of the 500 pieces of =N=1,500 recharge cards taken by the Claimant from the Defendant. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge