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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: SEPTEMBER 25, 2014 SUIT NO. NICN/LA/400/2013 BETWEEN Mr. Oluremi Omoshein - Claimant AND Crowns Relocations (Nigeria) Limited - Defendant REPRESENTATION Marcus Eyarhono, for the claimant. G. T. Agberen, for the defendant. JUDGMENT The claimant took up a complaint against the defendant dated and filed on 7th August 2012 praying for – 1. A declaration that the defendant cannot terminate the claimant’s employment without following the disciplinary procedure for termination of employment as contained in the contract of employment between the claimant and the defendant. 2. A declaration that the defendant’s termination of the claimant’s employment via an electronic mail dated the 31st day of August 2009 without following the disciplinary procedure provided in the contract of employment between the claimant and the defendant is invalid, null and void and incapable of having any legal consequences whatsoever. 3. A declaration that the claimant’s contract of employment with the defendant subsists and remains unbroken till the day judgment is delivered in the matter and thereafter, and until the claimant’s employment is validly terminated by the defendant. 4. A declaration that the claimant is entitled to his salaries and allowances from the defendant as at the 31st of August 2009 and from that day till the day judgment is delivered in the matter and thereafter, and until the claimant’s employment is validly terminated by the defendant. In the alternative to the foregoing, the claimant claims against the defendant as follows: 5. The sum of $18,744.68 (Eighteen Thousand, Seven Hundred and Forty-Four Dollars, Sixty-Eight Cents) being the amount due and owing to the claimant as at the 31st day of August 2009 when the claimant’s employment was terminated. 6. Interest on the said sum of $18,744.68 (Eighteen Thousand, Seven Hundred and Forty-Four Dollars, Sixty-Eight Cents) at the rate of 21% from the date of termination of the claimant’s employment until judgment is delivered in the matter and at any other rate the Honourable Court may adjudge fair and just until the sum is finally liquidated. 7. The sum of $4,800.00 (Four Thousand, Eight Hundred Dollars) being one month salary in lieu of notice. 8. The sum of N2,000,000.00 (Two Million Naira) being general damages. Accompanying the complaint are the statement of facts, list of documents to be relied upon at the trial, copies of the documents, list of witness(es) and witness statement on oath. In reaction, the defendant entered formal appearance by filing its memorandum of appearance. It then filed its statement of defence and counterclaim, defendant’s witness statement on oath, list of witnesses, list of documents to be relied on and copies of the documents. By order of Court made on 15th May 2013, the Court permitted the defendant to amend its counterclaim. By the amended counterclaim, the defendant is praying for – (a) The sum of Fourteen Million, Three Hundred and Thirty Thousand Naira “(N14,280,000.00)” only being special and general damages. (b) The immediate return of the counterclaimant’s company registration documents. The claimant reacted by filing his statement of defence to the counterclaim, list of documents to be relied on at the trial, copies of the documents, list of witness(es) and written statement on oath in defence against the counterclaim. At the trial, the claimant testified on his own behalf as CW, while June Samayin, the Customer Administrative Officer of the defendant, testified for the defendant as DW. At the close of trial, parties were asked to file and serve their respective written addresses. The defendant’s written address is dated 4th March 2014 but filed on 7th May 2014, while that of the claimant is dated 2nd June but filed on 4th June 2014. The defendant did not file any reply on points of law. The case of the claimant is that he was employed by the defendant vide a letter dated 30th July 2008 (Exhibit C1). He remained in the defendant’s employment until 31st August 2009 when the defendant vide an electronic mail, Exhibit C5(h), dated same day terminated his employment on the allegation that the claimant’s act of requesting a customer of the defendant to make out a cheque in the claimant’s personal name, and not the name of the defendant, is tantamount to fraud, and cannot be tolerated by the defendant. That he, the claimant, in his pleadings and evidence before the Court, admitted requesting the said customer of the defendant to issue the said cheque in his personal name, but explained the circumstances surrounding his action, and denied the allegation of fraud. The claimant went on that the defendant did not follow the procedure prescribed in their contract of employment (Exhibits C1, C12 and D1) in terminating his employment. Also, that a sum of money was due and owing to him from the defendant as at the date the defendant terminated his employment, but the defendant denied liability for the sum of money on the ground that it summarily dismissed the claimant from its employment and is, therefore, not entitled to the said sum of money. The case of the defendant is that the claimant was a staff (Branch Manager) of the defendant counterclaimant company. The claimant was employed on or about the 18t day of August 2008 and about the 318t day of August 2009 his appointment was summarily terminated for fraud against the defendant; and the claimant then instituted action against the defendant. The defendant framed three issues for the determination of this Court, namely – 1. Whether the personal opinion of the claimant who is a management staff of the defendant’s company can supersede the defendant company’s policy, thereby paying the defendant company’s monies into his personal bank account without the knowledge and consent of the defendant which amounts to fraud and gross misconduct. 2. Whether the defendant company is in any way financially liable to the claimant who is summarily dismissed for fraud – (theft). 3. Whether the defendant counterclaimant is entitled to the totality of its claim. Regarding issue 1, the defendant contended that in the course of the trial the claimant, under cross-examination, admitted to be the defendant’s company Branch Manager in Nigeria which makes him a management staff of the defendant's company. That in the claimant’s evidence in chief he stated to the effect that in the course of his duties in a particular transaction, after the customer had paid all the required charges to the defendant’s company account, he (the claimant) requested and received an additional payment of the sum of N2.6m (Two Million, Six Hundred Thousand Naira) in his personal account without the knowledge and consent of the defendant/counterclaimant. And under cross-examination, he admitted that he is aware, as a management staff of the defendant/counterclaimant’s company that it is the defendant’s company policy that all financial transactions involving the defendant must pass through the company’s accounting system. That he further admitted that the additional N2.6m (Two Million, Six Hundred Thousand Naira) paid by the customer did not pass through the company’s accounting system but paid into his personal account as shown in Exhibit C3 because in his opinion – a) The company had already made profit in the transaction. b) To save the company from paying bank charges. c) To save time. And that he did not report to his boss and or the company because he believes it is a matter he can handle even though he knows it is against the company’s financial policy. To the defendant, from the claimant’s admissions in evidence, he practically showed that he has breached the contract of employment – a) By willful disobedience of instructions and/or company’s policy. b) By stealing company’s funds. The defendant then referred to section 3.32, page 94 of the defendant’s company’s Handbook. Furthermore, that at page 99 it is clearly stated that disciplinary procedures will be used in circumstances involving very serious matters as theft which justify summary dismissal (gross misconduct), referring also to page 100 of the company’s Handbook and Exhibit C12. The defendant continued that it is the law that under the common law and the statute law, disobedience of lawful order from any servant high or low, big or small is viewed with seriousness. Such conduct normally and usually attracts the penalty of summary dismissal as disobedience ranks as one of the worst form of misconduct in any establishment, referring to Teliat Sule v. Nigerian Cotton Board [1985] 2 NWLR (Pt. 5) 17. That from the content of Exhibit C5 H it is clear that the claimant’s contract of employment and/or appointment was summarily terminated or dismissed for gross misconduct. The question that arises then, is what acts can be said to be gross misconduct. That gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and an employer, referring to Isong Udofia Umoh v. Industrial Training Governing Council [2013] NLLR (Pt. 119) 487 at 508 and Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599. To the defendant, having established that the claimant’s actions were gross misconducts, then the question that runs through one’s mind will be what could be the punishment for such gross misconduct. That a quick answer can be found in the case of Umoh v. Industrial Governing Council (supra) following the case of Ajayi v. Texaco (Nig.) Ltd [1987] 3 NWLR (Pt. 62) at 577 to the effect that where an employee is guilty for gross misconduct he could be lawfully dismissed summarily without notice and without wages. The defendant accordingly urged the Court to hold the claimant’s acts of willful disobedience of the defendant’s company’s policy and theft of the defendant’s company’s monies as acts of gross misconducts which consequences is summary dismissal of the claimant’s employment; thus the claimant’s claim should be dismissed in its entirety. On issue 2 i.e. whether the defendant company is in any way financially liable to the claimant who is summarily dismissed for fraud, the defendant contended that at the trial, the claimant admitted that he was issued a query as in Exhibit C2 which he described as “a request for information” on the transaction that led to his summary dismissal. Upon Exhibit C2, the claimant responded in Exhibit C5(e), C5(f) and C5(g) wherein he admitted to bye-passing the defendant’s company’s financial accounting system (i.e. paying the defendant’s company’s monies into his personal account by raising invoices outside the company’s invoice). This he also admitted, under cross-examination when he said that as a management staff of the defendant company he is aware of the defendant’s company’s accounting policy that all financial transactions involving the defendant company must pass through the defendant’s accountings system. But the N2.6m (Two Million, Six Hundred Thousand Naira) for the special clearance did not pass through the company’s account. The reasons he gave for this are that: the defendant had already made profit from the transaction; and he was saving the defendant from paying bank charges. The defendant went on that emanating from this testimony of the claimant are three fundamental issues – (1) Being aware of the defendant’s company’s accounting (financial) policy that all financial transactions involving the defendant must pass through its accounting system but decided to subvert same and paid the defendant’s company’s monies into his personal account (Exhibit C3). This amounts to breach of work performance – willful disobedience to instructions given – referring to section 3.32 (Breaches of Work Performance ¬causes for Dismissal; paragraph (D) at page 94 of the defendant’s company’s Handbook. (2) The act of generating the defendant’s company’s invoices outside the company’s accounting system amounts to falsification of company’s records, referring to section 3.32 paragraph (B) (causes for Dismissal) page 94 of the Handbook. (3) That he admitted paying the defendant’s company’s monies (N2.6million) into his personal account amounts to theft, referring to paragraph (g). To the defendant, these acts and/or conduct of the claimant amount to gross misconduct which has been identified as grave and weighty character as to undermine the confidence which should exist between an employee and an employer, referring to Umoh v. Industrial Governing Council (supra). The defendant continued that taking the trend of events sequentially, on 24th August 2009, the claimant was issued a query vide Exhibit C2. On 25th August 2009, the claimant answered and/or responded vide Exhibits C5(e), C5(f) and C5(g). It was the claimant’s response wherein his admittance of the allegations and/or questions on the issues raised in Exhibit C2 that revealed that the claimant falsified company’s documents and/or records, willfully disobeyed given instructions and theft of company’s monies. That all of these amount to gross misconduct. That it is trite law that in cases where natural justice is relevant in the termination of the employment of an employee, the opportunity to be heard need not be oral unless where oral hearing is expressly provided by statute. The requirement of fair hearing is satisfied by an opportunity given to the employee to make representation whether written or oral, referring to Baba v. Nigerian Civil Aviation Training Centre [1991] 5 NWLR (Pt. 192) 388. To the defendant, upon the revelation from Exhibits C5(e), C5(f) and C5(g), Exhibit C5(h) was issued and served on the claimant terminating his employment summarily. Thus it is the law that where an employee is guilty of gross misconduct he could be lawfully dismissed summarily without notice and without wages, referring to Umoh v. Industrial Governing Council (supra). From the above, that it is obvious that the defendant company, having found the claimant guilty of gross misconduct, can lawfully dismiss the claimant’s employment summarily without notice and without wages. And so that the defendant is not in any way liable to the claimant either financially or otherwise, urging the Court to dismiss the claimant’s claim. Regarding issue 3 i.e. whether the defendant counterclaimant is entitled to the totality of its claim, the defendant contended that during the period of the employment of the claimant, the claimant was given some company’s properties for the ease of operations of the claimant as a staff of the defendant. And this, the claimant admitted during cross-examination. That when his employment was terminated, he deliberately neglected to return the properties to the defendant and upon this, the defendant company counterclaimed for the sum of N14,330,000.00 (Fourteen Million, Three Hundred and Thirty Thousand Naira) for the cost of the Toyota Hundra Truck, cost of Laptop, keys and loss of use of the truck for about 750 days and businesses. That these where proved at the trial and Exhibits D1 – D8 established same. That this evidence was never challenged but tried to justify the detinue and holding over of the defendant’s properties by saying under cross-exanimation that he believed the company’s policy is to the effect that disengaged staff must be paid their wages and allowances first before the employee can return the properties. It is the submission of the defendant that the claimant’s belief is quite erroneous as section 3.38 at page 100 of the defendant’s company’s Handbook provides under the caption, “Return of company property”, on the termination of your employment with the company, you will return any company property issued to you in the course of your duties”. Thus the claimant, who was summarily dismissed for gross misconduct, was lawfully dismissed and the claimant is not entitled to any wages; and so cannot expect any wages before the return of the company’s properties. In the circumstance, that the claimant has no legal justification for the illegal detention and withholding of the company’s properties, urging the Court to uphold the claims of the defendant company. In conclusion, the defendant urged the Court to dismiss the claimant’s claim and/or suit in its entirety as lacking in merit and uphold the defendant’s defence and counterclaim in its entirety and judgment entered in favour of the defendant counterclaimant. The claimant on his part merely adopted the three issues framed by the defendant, namely – 1. Whether the personal opinion of the claimant who is a management staff of the defendant’s company can supersede the defendant’s company’s policy, thereby paying the defendant company’s monies into his personal bank acc¬ount without the knowledge and consent of the defendant which amounts to fraud and gross misconduct. 2. Whether the defendant company is in any way financially liable to the Claim¬ant who is summarily dismissed for fraud – (theft). 3. Whether the defendant counterclaimant is entitled to the totality of its claim. On the defendant’s issue 1, the defendant had argued, that the claimant’s acts of willful disobedience of the defendant company’s policy and theft of the defendant company’s monies amount to acts of gross misconducts which consequence is summary dismissal of the claimant, urging the Court to so hold and dismiss the claimant’s claim in its entirety. Here, the claimant observed that the defendant attempted to distort and misrepresent the claimant’s evidence by the defendant’s statement, to wit: And in the claimant’s evidence in chief he stated to the effect that in the course of his duties in a particular transaction, after the customer had paid all the required charges to the defendant’s company account, he (the claimant) requested and received an additional payment of the sum of N2.6m (Two Million, Six Hundred Thousand Naira) in his personal account without the knowledge and consent of the defendant/counterclaimant. The defendant dad also stated in that one of the three reasons the claimant gave for paying the N2.6m (Two Million, Six Hundred Thousand Naira) into his personal account is that, in his opinion, the company had already made profit in the transaction. To the claimant, by the above statements, the defendant has portrayed the claimant’s receipt of the said N2,600,000.00 (Two Million, Six Hundred Thousand Naira) and the payment of same into his personal account as if the claimant received the sum of money for his personal use, whereas this was not the evidence of the claimant before the Court. The claimant referred the Court to paragraphs 10 – 24 of the claimant’s written statement on oath dated 7th August 2012 and Exhibits C4(a), C4(b) and C4(c), where the claimant explained the circumstances surrounding his request for the issuance of the cheque for the sum of money in his personal name, and how the money was utilized. The claimant continued that it was not his evidence that he paid the N2.6m (Two Million, Six Hundred Thousand Naira) in issue into his personal account because, in his opinion, the company had already made profit. Rather, his evidence is that he personally requested the client to issue the cheque for the sum of money in his name because the client did not pay any additional sum (margin) to the fee charged by the service provider and that paying a sum of money without a margin into the defendant’s bank account will incur unnecessary bank charges. To the claimant, Exhibits C2, C5(f) and C5(h) are relevant and material in resolving the defendant’s issue 1. It is also the claimant’s view that paragraphs 24 and 25 of his statement of facts, paragraphs 25 and 26 of his written statement on oath, paragraph 12A of the defendant’s statement of defence dated 17th April 2013 and paragraph 14A of the defendant’s written statement on oath 8th February 2013 will assist the Court in resolving the defendant’s issue 1, one way or the other. That in Exhibit C2 the defendant, following a customer’s complaint against the claimant, put before the claimant, the question – “…why were these invoices not loaded with the system? The defendant, in the same Exhibit C2, stated further: “…Our system is fully set up to charge the clients for any removals related service and no one is allowed to create their own invoices using crowns name outside the system. In response to the above question, the claimant, after the explanations in Exhibits C5(e) and C5(f) stated in the first sentence of the third paragraph of Exhibit C5(f) thus – The invoices were not loaded into the system as this was outside what we normally quote for and the intricacies involved would have made it impossible for the task to be accomplished. Then in Exhibit C5(h), by which the defendant terminated the claimant’s employment, the defendant stated thus – As you are aware, we recently discovered that you unlawfully misappropriated payments which were due to Crown Relocations. In particular, by your own admission, you requested a customer of Crown Relocations, Dr. Lawal, to make out cheque payments in your personal name and not that of Crown Relocations. Your conduct in this regard is tantamount to fraud and cannot be tolerated by Crown Relocations…. In paragraphs 25 and 26 of the claimant’s written statement on oath, the claimant, in accordance with the facts pleaded in paragraphs 24 and 25 of his statement of facts testified respectively as follows – That by the mode of operation of the defendant and its sister companies, it is not the duty of a sister company receiving a consignment to raise invoices for services for the clearance and delivery of the consignment in the defendant’s system, but the duty of the controlling office of the transaction, that is, the sister company handling the transportation of the consignment, after receiving the rates for the clearance and delivery of such consignment from the sister company in the destination country. That the controlling office of the transaction in issue was the defendant’s sister company in Cape Town, South Africa. In response to the above testimony of the claimant, the defendant, in accordance with the facts it pleaded in paragraph 12A of its statement of defence, testified in paragraph 14A of its written statement on oath as follows – That in reaction to paragraphs 24, 25, 26, 27 and 28 of the statement of claim, that it is the controlling branch (i.e. the branch originating the transaction) of the defendant’s company that normally raises invoices including extra charges but sometimes subject to the advice, consent and knowledge of the controlling branch, the branch receiving the consignment can raise invoices on extra charges like in this case. The claimant then urged the Court to note that from Exhibits C2 and C5(h), it can be seen, that the reason the defendant terminated the claimant’s employment was because the claimant did not load in the defendant’s system the invoices he issued to the defendant’s customer, Dr. Lawal, and that the claimant requested the said customer to make out cheque payment in the claimant’s personal name, and not the name of the defendant. Therefore, that there was no other reason, other than the reason stated above, why the defendant terminated the claimant’s employment. Consequently, that this reason is relevant and material in considering the defendant’s issue 1 and other related issues thereto, and that arguments of the parties on the defendant’s issue 1 and other related issues should be considered and examined in the light of this reason. The claimant then submit that the defendant did not categorically challenge or controvert the claimant’s paragraph 24 of the statement of facts and paragraphs 25 and 26 of the claimant’s written statement on oath these testimonies, both in its evidence in chief and under cross-examination of the claimant’s witness, referring to State v. Oladotun [2011] 10 NWLR (Pt. 1256) 542 at 558 – 559. Additionally, that a perusal of Exhibits C5(c) and C5(d) will reveal that the controlling office i.e. the defendant company in Cape Town, South Africa, which handled the transportation of the consignment in question had knowledge of the extra charges the claimant gave the defendant’s said customer, Dr Lawal, and also consented to same. Again, that in paragraph 17 of the claimant’s written statement on oath, the claimant testified that the consignment was cleared and delivered by the service provider of the defendant, KHADIJAT Nigeria Limited, to the recipient. Furthermore, that in paragraph 24 of the claimant’s written statement on oath, the claimant testified that he paid the money – N2,600,000.00 (Two Million, Six Hundred Thousand Naira) – in two installments to the service provider in the course of its service and the last installment at the completion of the service, and the claimant tendered Exhibits C3, C4(a), C4(b) and C4(c), which are receipts issued to him by KHADIJAT Nigeria Limited, to buttress his claim. To the claimant, these testimonies are also relevant and material to the defendant’s issue 1 and that the Court should note that the defendant did not challenge these testimonies nor cross-examine the claimant’s witness on them. Therefore, the Court can rely on these testimonies in resolving the defendant’s issue 1, urging the Court to so hold. That it is also important to note that the defendant did not adduce any shred of evidence to substantiate its allegation of misappropriation of fund or fraud against the claimant, referring the Court to Exhibit C5(h). That that the defendant has a duty to go beyond mere allegation and prove, with concrete and credible evidence, its allegation against the claimant; but the defendant failed woefully to discharge this burden. Under section 131(1) of the Evidence Act 2011 it is provided that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. It is the further submission of the claimant that the mere fact that the claimant requested a customer of the defendant to issue the cheque for the N2,600,000.00 (Two Million Six Hundred Thousand Naira) in his personal name and paid same into his personal account cannot be relied upon as a conclusive proof that the claimant misappropriated the sum of money. That the claimant’s MOTIVE or INTENT for so doing is relevant and material (both in the contract of employment with the defendant and under the Evidence Act), and should have been investigated and considered by the defendant before terminating the claimant’s employment. That in Exhibit C5(f), the claimant explained the reasons why he requested the said customer to issue the cheque in his personal name, and why he paid the money into his personal account, and not that of the defendant, as follows – The invoices were not loaded into the system as this was outside what we normally quote for and the intricacies involved would have made it impossible for the task to be accomplished. Also referred to the Court are paragraphs 19 – 22 and 25 – 29 of the claimant’s written statement on oath, where the claimant, in his testimony before the Court, explained the reasons for his action. In paragraphs 17 and 18 of his written statement on oath, the claimant testified that the consignment was cleared and delivered by the defendant’s service provider, KHADIJAT Nigeria Limited, and that he paid the N2,600,000.00 (Two Million Six Hundred Thousand Naira) to it, for the service. That the defendant, in its paragraph 10 of its written statement on oath (where it reacted to the claimant’s testimonies) did not challenge the evidence neither did it cross-examine the claimant on the testimonies. Consequently, the claimant submitted that the Court can rely on these testimonies in resolving the defendant’s issue 1, urging the Court to so hold. It is also the claimant’s submission, that the defendant could have easily reached the said service provider, KHADIJAT Nigeria Limited, being its own service provider, to confirm whether or not it actually received from the claimant the sum of N2,600,000.00 (Two Million Six Hundred Thousand Naira) and whether it actually issued Exhibits C, C4(a), C4(b) and C4(c) to the claimant. The claimant continued by referring the Court to the 5th, 6th and 7th bulleted paragraphs at page 10 of the Exhibit D1, where it is stated respectively, as follows – No disciplinary action shall be considered against an employee unless he is afforded a proper opportunity to state his case and to defend himself against any allegation made against him. In accordance with the provisions of this procedure, every employee shall during formal enquiries as well as appeal hearings, be entitled to be assisted by a representative who is a fellow employee, to question witnesses and to call witnesses and lead witnesses himself. Disciplinary action shall be instituted without bias and with due consideration of the relevant facts… To the claimant, the defendant, in terminating the claimant’s employment, did not observe or follow this procedure, otherwise the claimant would have been able to explain better to Ian Pettey the nature of the transaction in issue and the circumstances surrounding his action, and also call his witnesses, particularly, the officers (Augustin Palomino and Marius) at the controlling office in Cape Town, South Africa (who were also involved in the transaction at their own end) and KHADIJAT Nigeria Limited. The Court was also referred to the Notice of Disciplinary Enquiry in Exhibit C12 where a total of ten (10) workers rights are stated and which include the right to be represented at a hearing by one employee of the company, the right to ask question of any evidence produced or on any statement by witnesses and the right to call witnesses to testify. The claimant also submitted that the allegation against him is a weighty one that ordinarily requires the defendant to adhere strictly to its rules and regulations and all its relevant Discipline Procedure in order to ensure that there is a concrete proof of the allegation before acting on the allegation to terminate the claimant’s employment. Furthermore, that the allegation against the claimant is criminal and as such the provisions of section 135(1) of the Evidence Act 2011 (hereinafter referred to as the Evidence Act) applies in determining whether or not the defendant was able to discharge the burden of proof required of it in the trial of this suit, citing Ishaku v. Aina [2004] 11 NWLR (Pt. 883) 146 at 178, where the Court of Appeal held as follows – By virtue of Section 138(1) (now section 135(1) of the Evidence Act 2011, the standard of proof required when an allegation of crime is made in a civil trial is proof beyond reasonable doubt. It is the claimant’s submission that the defendant failed woefully to prove its allegation of misappropriation of fund or fraud against the claimant, urging the Court to hold accordingly and resolve the defendant’s issue 1 against the defendant. Although the claimant said he will take up issues 2 and 3 together as they are related and interdependent, he ended up taking them separately. On its issue 2, the defendant had argued that having found the claimant guilty of gross misconduct, the defendant can lawfully dismiss the claimant summarily without notice and without wages and that the defendant is not in any way liable to the claimant either financially or otherwise, and it urged the Court to dismiss the claimant’s claim. To the claimant, in accordance with his submissions on the defendant’s issue 1, the defendant in its testimonies before the Court did not adduce any evidence to substantiate its allegation of misappropriation of fund or fraud against the claimant and for which it terminated the claimant’s employment with immediate effect. Thus the defendant’s termination of the claimant’s employment is wrongful. On its issue 3, the defendant had submitted that the claimant was lawfully dismissed, as he was dismissed for gross misconduct and therefore not entitled to any wages and cannot expect any wages before return of company properties. That the defendant attempted to rely on the procedure stated in paragraph 3.38 at page 100 of Exhibit C12. The defendant argued further that the claimant has no legal justification for the illegal detention and withholding of the company’s properties and urged the Court to grant the defendant’s counterclaim against the claimant. To the claimant, once again in accordance with his submissions on the defendant’s issue 1, the defendant had no valid ground upon which it terminated the claimant’s employment with immediate effect and that the defendant act of so doing is wrongful. The claimant then urged the Court to note that paragraph 3.38 at page 100 of Exhibit C12 is a continuation of the last paragraph of page 99 of the said Exhibit C12 titled, “Discipline Procedure”. That under the title, “Discipline Procedure”, it is stated as follows – This procedure will be used in circumstances involving very serious matters in respect of which the Company may decide to terminate the employment of the alleged offending employee. Examples of instances justifying summary dismissal include but are not limited to: theft of company property and/or clients’ property, colleague’s property, threatened or actual assault, breach of confidentiality or breach of conditions of employment. Furthermore, that under paragraph 3.38 at page 100 of the said Exhibit C12 titled, “DISMISSAL”, it is stated the following procedure: Interview, Meetings, Response, Deliberations, Entitlements, Written Confirmation and Return of Company Property. Under the heading, “ENTITLEMENTS”, it is stated – The employee will be paid to the date of the termination only. All outstanding annual leave entitlements will be paid. That the term, “procedure” is defined in the Black’s Law Dictionary, Eighth Edition, as “A specific method or course of action”. To the claimant, by the sequence of the Discipline Procedure stated above, “Payment of Entitlements” precedes “Return of Company Property”. Thus, the claimant is entitled to hold onto the defendant’s properties in his possession until the defendant pays his entitlements. It is also the claimant’s submission that by virtue of Exhibit C12 the defendant is liable to pay the claimant up to the date the defendant terminated his employment, assuming but without conceding that the defendant’s allegation against the claimant as contained in Exhibit C5(h), and for which the defendant terminated the claimant’s employment, is true and was proved in the trial of this suit. The Court was then referred to the last paragraph of page 100 of Exhibit C12 titled, “THEFT”, where it is stated as follows – Theft of Company property or Customer property, whether or not for financial gain, will be reported to the police for prosecution and will be grounds for dismissal. In particular, all uniform items must be handed back or the cost will be deducted from termination monies. That what can be deduced from the above terms, other than the point that the employee, who is accused of theft of the defendant’s property or customer’s property, whether or not for financial gain, is to be paid termination monies from which the cost of uniform items will be deducted, where the employee fails to return the uniform items. Furthermore, that it follows that after the deduction of the costs of uniform items not returned by the employee, the balance is paid to the employee, even though he has been accused of theft of the defendant’s property or the defendant’s customer’s property, whether or not for financial gain, and summarily dismissed for same. Under the Discipline Procedure, at the last paragraph of page 99 of Exhibit C12 it is expressly stated: “Examples of instances justifying summary dismissal include but are not limited to theft of company property and/or client’s property....” Thus, a perusal of these terms vis-à-vis the terms stated at the last paragraph of page 100 of Exhibit C12, titled: “THEFT” clearly reveals two points, to wit: i) That theft of the defendant’s property or the defendant’s client’s property by its employee is a ground for summary dismissal of such employee; and ii) that the defendant’s employee summarily dismissed for theft of the defendant’s property or the defendant’s client’s property is paid termination monies, less the cost of uniform items not returned, where the employee in question is in possession of the defendant’s uniform items. The claimant went on that if the defendant’s argument that the defendant is not liable to pay the claimant any monies on the ground that the claimant was summarily dismissed were to be the case, then from what sum of money is the costs of uniform items not returned (by an employee accused of theft and summarily dismissed for same) to be deducted? The claimant then urged the Court to note that the heading, “THEFT” and the terms stated there under are not part of the Discipline Procedure but an addendum or a footnote providing additional information on cases of theft and instances where the employee accused of such theft is in possession of the defendant’s uniform items. To the claimant then, a community reading of the Discipline Procedure and the footnote titled “Theft” will reveal that the only items to be returned before payment of entitlements or termination monies are uniform items of the defendant and no other and there is no evidence before the Court that the claimant is in possession of the defendant’s uniform items. Furthermore, that if it had been intended that other items, other than uniform items, are to be returned to the defendant before payment of termination monies, such items would have also been expressly mentioned and it would have also been stated that their costs will be deducted from termination monies if such items are not returned. That the maxim is: “expression unius est exclusion alterius”, meaning, the express mention of one thing implies the exclusion of others not mentioned. The claimant continued that Exhibit C12 is a part of the contract of employment between him and the defendant; it is binding on them, and we urge the Court to give effect to it, citing A. I. Inv. Ltd v. Afribank (Nig.) Plc [2013] 9 NWLR (Pt. 1359) 380 at 408 – 409. That should the Court find any part of the contract of employment between the claimant and the defendant ambiguous, the ambiguity is, by virtue of the contra preferentem rule of construction, to be resolved against the defendant as the defendant is the maker of the contract document and not the claimant. The claimant then urged the Court to resolve the defendant’s issues 2 and 3 against the defendant on two grounds, to wit: i) The defendant failed woefully to prove its allegation of misappropriation of its fund, fraud or theft against the claimant; and that ii) if the allegation were true and proved by the defendant, by virtue of Exhibit C12, the defendant is liable to pay the claimant up to the day the defendant terminated the claimant’s employment. Having made his submissions on the issues raised by the defendant, the claimant proceeded to raise for the determination of the Court the following issues – a) Whether Exhibit C1 is admissible in evidence, the same having not been dated and signed by the claimant. b) Whether the defendant’s reason for terminating the claimant’s employment is tenable, having regard to the facts and circumstances of the case. c) Whether the defendant in its response to paragraph 33 of the claimant’s statement of facts establishing the cause of action denied the claimant’s averments that the sum of money stated therein is due and owing to him from the defendant. d) Whether upon a proper construction of Exhibit C12 there is a procedure for the defendant to follow even where the defendant is to terminate the claimant’s employment with immediate effect; and if issue d) is resolved in the affirmative, e) whether the defendant followed the said procedure in terminating the claimant’s employment. f) Whether upon a proper construction of Exhibit C12 the claimant is entitled to be paid up to the date the defendant terminated his employment, assuming but without conceding that the defendant allegation against the claimant, as contained in Exhibit C5(h) (and for which the defendant terminated the claimant employment) is true and was proved in the trial of the suit. Regarding issue a) i.e. whether Exhibit C1 is admissible in evidence, the same having not been dated and signed by the claimant, the claimant referred to section 93 of the Evidence Act 2011, which provides that – If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Also referred by the claimant is section 12(2)(a) and (b) of the National Industrial Court (NIC) Act 2006, which provides as follows – Subject to this Act and any rule made there under, the Court – (a) may regulate its procedure and proceedings as it thinks fit, and (b) shall be bound by the Evidence Act but may depart from it in the interest of justice. That Order 19(9)(ii) of the NIC Rules 2007 provides as follows – (9) The order of proceeding at the trial of a cause shall be as prescribed hereunder: (ii) Documentary evidence shall be put in and may be read or taken as read by consent. To the claimant, the general rule, as provided under the Evidence Act, is that documents not signed are inadmissible in evidence. However, that there is no general principle of law that applies immutably in all cases without exception. That the position of the law is that each case is treated in the light of its peculiar facts and circumstances. In the claimant’s view, the draftsmen of the NIC Act and the NIC Rules, in their wisdom, realized that there are instances where employees accept written employment offers by conduct, and that by a mutual understanding of both parties, the formalities of the employee’s date and signature indicating acceptance may be ignored, and that a strict adherence to the provisions of the Evidence Act as to date and signature may occasion undue hardship and injustice to employees who have taken up employment under such circumstances, and with the consent or acquiescence of the employer. Thus, by virtue of the provisions of section 12(2)(b) of the NIC Act and Order 19 Rule 9(ii) of the NIC Rules, the Court is a special Court with Rules of Practice and Procedure different from what obtains in the regular courts. Therefore, matters before the Court are somewhat sui generis and are to be regulated by the Court’s Rules of Practice and Procedure, referring the Court to Abia State Transport Corporation & 2 ors v. Quorum Consortium Ltd [2009] NWLR (Pt. 1145) 29, where the apex Court held as follows – Rules of Court of each Court are not made for fun, but to be obeyed. Once such rules are in place, they must be adhered to and not contravened or ignored. Again, that the operative word “shall” used in Order 19(9)(ii) of the NIC Rules is a word of command to be given a compulsory meaning. It is mandatory and excludes all idea of discretion, referring to Nwankwo v. Yar’Adua [2011] NWLR (Pt. 1263) 81 at 125, where the Court of Appeal held as follows – The use of the word “shall” in a statute or rules of court makes it mandatory that the rule or the provisions must be observed. The word “shall” is used to express a command or exhortation or what is legally mandatory. The claimant urged the Court to note that the defendant in its response to paragraph 4 (where the claimant pleaded Exhibit C1) of the claimant’s statement of facts, as contained in paragraph 2 of its statement of defence did not deny the existence or authenticity of Exhibit C1 as a contract of employment between it and the claimant. That the defendant only denied the claimant’s averment that he was employed as a managing director of the defendant, but did not deny the existence or authenticity of Exhibit C1 as an agreement between it and the claimant. In fact, that the defendant in the said paragraph 2 of its statement of defence stated that it shall rely on Exhibit C1 at the trial of the suit and actually relied on it during the trial of the suit. The claimant accordingly submitted that since the claimant and the defendant are ad idem on the existence and authenticity of Exhibit C1 as shown in their pleadings and testimonies before the Court, Exhibit C1 can properly be admitted in evidence under the provisions of Order 19 Rule 9(ii) of the NIC Rules. The claimant submitted further that rejecting Exhibit C1 on the ground that it is not dated and signed by the claimant will amount to rejecting it on a technical ground and not on the merit, as the defendant admitted the said Exhibit in its pleadings and did not controvert same in its evidence before the Court. That in Garan v. Olomu [2013] NWLR (Pt. 1365) 227 at 253, the Supreme Court held that “substantial justice remains the focus of the law, and not technicality”. That in the circumstances, this is a proper case for the Court to invoke its powers under section 12 of its enabling law to depart from the Evidence Act and admit Exhibit C1 under the provisions of Order 19 Rule 9 of the NIC Rules. On issue b) i.e. whether the defendant’s reason for terminating the claimant’s employment is tenable having regard to the facts and circumstances of the case, the claimant contended that the complaint of the defendant’s customer, Dr. Lawal, as contained in the first paragraph of Exhibit C2, was the modus operandi as to the sequence of events surrounding the extra charges the claimant levied on the customer. That it can be seen from Exhibit C2 that the defendant’s said customer did not complain about the service rendered for the sum of money he paid; his complaint, as contained in Exhibit C2 was the manner the invoices were issued to him. Thus, one inference to be drawn from this fact is that service was rendered to the customer for the money he paid. The claimant continued that in accordance with his explanations in the first sentence of the third paragraph of Exhibit C5(f) testified in paragraphs 19 – 22 and 25 – 26 of his written statement on oath on the various reasons why the invoices he issued to the defendant’s said customer were not loaded in the defendant system. That he also testified in paragraphs 17 and 18 of the written statement on oath that the consignment in issue was c1eared, and delivered to the customer by the service provider of the defendant, KHADIJAT Nigeria Limited. That he again testified in paragraph 18 of his written statement on oath that he paid the N2,600,000.00 (Two Million Six Hundred Thousand Naira) paid by the customer to the said KHADIJAT Nigeria Limited and tendered receipts – Exhibits C4(a), C4(b) and C4(c) – issued to him by KHADIJAT Nigeria Limited. It is the claimant’s submission that these testimonies are relevant and material in determining whether or not the defendant’s reason for terminating the claimant employment is tenable. He urged the Court to note that the defendant, in its response to these testimonies of the claimant, did not challenge or controvert the testimonies neither did the defendant cross-examine the claimant on the testimonies. The claimant again referred to section 135(1) of the Evidence Act, which provides that – If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt. The claimant then submitted that, if by virtue of the above provision of the Evidence Act, the defendant’s allegation that the claimant misappropriated payments due to it or defrauded it or stole its money, is to be proved beyond reasonable doubt, then the claimant’s motive or intent for not loading the invoices he issued to the defendant’s said customer into the defendant’s system is relevant and material in resolving the claimant’s issue b). The claimant also submitted that the claimant’s mere act of requesting the defendant’s customer to issue a cheque in his personal name and not the name of the defendant cannot be relied upon as a conclusive proof that the claimant misappropriated the sum of money endorsed on the cheque. Furthermore, that assuming but without conceding that by the defendant’s mode of operation the claimant ought to have raised the invoices in the defendant’s system, the defendant should have investigated the claimant’s motive for not doing so by interrogating other persons involved in the transaction. That there is no evidence before the Court that officers of the defendant’s sister company in Cape Town, South Africa, which handled the shipment of the consignment in issue, were interrogated in order to confirm or refute the claimant’s reasons and explanations for not loading the invoices in the defendant's system. Also, that the claimant, in accordance with his pleadings in paragraphs 16 and 17 of his statement of facts, testified in paragraphs 17 and 18 of his written statement on oath that the consignment was cleared by the service provider of the defendant, KHADIJAT Nigeria Limited, and that he paid the N2,600,000.00 (Two Million Six Hundred Thousand Naira) paid by the customer to the said KHADIJAT Nigeria Limited, for the service. The claimant then urged the Court to note that the defendant in its pleadings and evidence before the Court did not deny that KHADIJAT Nigeria Limited is its appointed service provider, neither did it adduce any evidence as to whether or not it confirmed from KHADIJAT Nigeria Limited the claimant’s claim that he paid the sum of the N2,600,000.00 (Two Million Six Hundred Thousand Naira) paid by the customer to it for the clearance and delivery of the consignment. The claimant further urged the Court to note that the statement, “...we recently discovered that you unlawfully misappropriated payments which were due to Crown Relocations”, contained in the first sentence of the first paragraph of Exhibit C5(h) is misleading, as the said payments were not for the defendant but for the service of clearing and delivering of the consignment to the defendant’s said customer, Dr. Lawal. Thus, if the money had been paid into the defendant’s bank account it ultimately would have been requisitioned and used to pay for the same service. And that there is no evidence before the Court that the service for which the money was paid was not rendered. This is what informed the claimant’s statement in the first sentence of the second paragraph of Exhibit C5(f) that he is surprised that after two months of delivering the consignments with no initial complaints issues are being raised about payment. To the claimant, in the light of the above submissions, the defendant’s reason for terminating the claimant’s employment is unfair, unlawful and not tenable. That in paragraph 9 of Exhibit C1, it is stated, among others, that the contract of employment may be terminated for any other lawful or fair reason, including for breach of the company’s Disciplinary Code and Procedure or this contract of employment. That in Akubuiro v. Mobil Oil (Nig.) Plc [2012] 14 NWLR (Pt. 1319) 42 at 73, the Court of Appeal held, that an allegation of commission of a crime must be proved beyond reasonable doubt. Regarding issue c) i.e. whether the defendant, in its response to paragraph 33 of the claimant’s statement of facts, denied the claimant’s averments that the sum of money stated therein is due and owing to him from the defendant, the claimant contended that in paragraph 33 of his statement of facts dated 7th August 2012, he had pleaded thus – The Claimant avers that he, through an electronic mail, sent the total sum ($18,744.68, Eighteen Thousand, Seven Hundred and Forty Four Dollars, Sixty Eight Cent, and the breakdown of same) due and owing to him from the Defendant, to Mr. Ian Pettey and link, but that up till the time of filing this action, neither Ian Pettey nor Link has replied the mail or liquidated the sum. In response to the above pleadings of the claimant, the defendant, in paragraph 15 of its statement of defence dated 17th April 2013 pleaded as follows – The Defendant admits paragraph 32 of the statement of claim and in reaction to paragraph 33, denies any liability to the claimant especially as the claimant refused to return the claimant’s properties in his care which includes the Defendant company’s operational truck, laptop, mobile phones, keys, and company’s registration document all worth well over Fifteen Thousand Naira (15,000.00). To the claimant, the defendant, in its above response, did not deny the claimant’s averment that the sum of money stated in his pleadings in paragraph 33 of his statement of facts is due and owing to him from the defendant. Also that the defendant’s response to paragraph 33 of the claimant’s statement of facts is a mere attempt to deny the legal consequence of the facts pleaded therein and not the facts themselves or the substance of the allegation contained therein. That the defendant’s response is nothing but a legal argument that should have been reserved for address as the question of whether or not the defendant is liable is an issue of law and not of fact. Consequently, the claimant submitted that his averments in paragraph 33 of his statement of facts including the averments that the sum of money stated therein is due and owing to him from the defendant, are deemed admitted and requires no proof, citing M.S. Co. S.A. v. Enemaku [2012] NWLR (Pt. 1312) 583 at 600 – ¬601. Thus, that the defendant did not deny the claimant’s averments in paragraph 33 of his statement of facts and that the averments are deemed admitted and required no proof from the claimant. Regarding issues d) and e) i.e. whether upon a proper construction of Exhibit C12 there is a procedure for the defendant to follow even where the defendant is to terminate the claimant’s employment with immediate effect; and if this issue is resolved in the affirmative, whether the defendant followed the said procedure in terminating the claimant’s employment, the claimant contended that in the last paragraph of page 98 of Exhibit C12, it is stated as follows – In very serious matters (such as serious or willful misconduct) immediate termination of employment may be considered. In this case the Company’s Discipline Procedure will be utilized. That the above-mentioned “Discipline Procedure” is stated as the last heading of page 99 of Exhibit C12 and the said procedure begins at paragraph 3.38 (titled Dismissal) at page 100 of Exhibit C12 with the word, “interview” and ends with the phrase, “Return of Company Property”. To the claimant, the term, “procedure” is defined in the Black’s Law Dictionary, Eighth Edition, as, “a specific method or course of action”. The claimant then submitted that by the term, procedure, the defendant is required to follow, step by step, each of the steps, to wit: Interview, Meeting, Response, Deliberations, Entitlements, Written Confirmation and Return of Company Property, as clearly stated in Exhibit C12 in terminating the claimant’s employment. The claimant urged the Court to critically examine the activities under the “interview” stage and consider whether the defendant observed same in terminating the claimant’s employment. First of all, that the Court should note that the interview requires a face to face contact and oral interview between the claimant and the defendant. Secondly, that the claimant is entitled to attend the interview with a support person who is to act as an observer, if the claimant so wishes. Again, the claimant submitted that the activities at the “meeting” stage also requires a face to face contact and oral deliberation between the claimant and the defendant, and the presence of a company witness to take file notes. Therefore, the case of Baba v. NCATC [1991] 5 NWLR (Pt. 192) 388 cited by the defendant does not support the case of the defendant, but rather it supports the case of the claimant as it is expressly stated in Exhibit C12 that oral hearing (interview, meetings, response and deliberation) is required in the defendant’s Discipline Procedure and should have been observed by the defendant in terminating the claimant’s employment. To the claimant, that by virtue of Exhibit C12, the defendant was required to follow these procedures even where it is to terminate the claimant’s employment with immediate effect. That in the first sentence of the second paragraph of Exhibit C5(h), the defendant stated – In the circumstances, we have no alternative but to inform you that Crown Relocations hereby terminates your contract of employment with immediate effect. That the term, “immediate termination of employment”, used in the last paragraph of page 98 of Exhibit C12, means the same thing as the term, “termination with immediate effect” used by the defendant in Exhibit C5(h), as stated above. Thus, the above procedure applies even where the defendant is to terminate the claimant’s employment with immediate effect. Also, that the Court should note and consider the nexus between the above procedure and the relevant portion of Exhibit D1. The claimant went on that that the evidence before the Court shows clearly that the defendant did not observe or follow this procedure in terminating the claimant’s employment. That Convention 158 of the International Labour Organization (ILO) provides as follows – An employee cannot be fired without any legitimate motive or before offering him the possibility of defending himself. Termination must be in accordance with the terms of the employee’s contract otherwise it becomes wrongful, unlawful and will therefore attract damages payable by the employer. Also that by virtue of the contra preferentem rule of construction, Exhibits C12 and D1 are to be construed strictly against the defendant, as the defendant is the maker of the contract documents. In the light of the above arguments, the claimant urged the Court to resolve the claimant’s issues d) and e) in favour of the claimant. On issue f) i.e. whether upon a proper construction of Exhibit C12 the claimant is entitled to be paid up to the date the defendant terminated his employment, assuming but without conceding that the defendant’s allegation against the claimant as contained in Exhibit C5(h) (and for which the defendant terminated the claimant employment) is true and was proved in the trial of the suit, the claimant merely adopted his submissions earlier advanced in paragraphs 4.52 – 4.56 of his written address when he was addressing the defendant’s issues 2 and 3. In conclusion, the claimant urged the Court to grant all his claims against the defendant and dismiss the defendant’s counterclaim. The defendant did not file any reply on points of law. I heard learned counsel and considered all the processes in this matter. Before considering the merit of the case, I need to remark on a thing or regarding the submissions of counsel. The claimant has two paragraphs 4.05 and 4.06 at the third page of his written address thus contravening Order 20 Rule 2 of the National Industrial Court (NIC) Rules 2007 to the effect that “a written address shall be…set out in paragraphs numbered serially….” Secondly, the submissions of the claimant were repetitive in quite a number of respects. For instance, the argument of the claimant that the consignment was cleared and delivered by the service provider of the defendant, KHADIJAT Nigeria Limited, to the recipient was repeated in paragraphs 4.22, 4.30, 4.87 and 4.95 of the claimant’s written address. Secondly, even the claimant’s argument as to the reason why the defendant terminated his employment and the claimant’s rebuttal is repetitive. See paragraphs 4.12 – 4.19 of the claimant’s written address. Also repetitive is the argument of the claimant that the defendant did not challenge or cross-examine him on his testimony. See paragraphs 4.24 and 4.90 of the claimant’s written address. Other examples of repetition litter the claimant’s written address such as the payment of N2,600,000.00 to KHADIJAT Nigeria Limited as per paragraphs 4.23, 4.88 and 4.95; and the reliance on section 135(1) of the Evidence Act 2011 as per paragraphs 4.35, 4.91 and 4.92. In considering the merit of the case, there is the need to resolve the issue of the evidential value to be given Exhibits C1 (not signed), C6 (not signed and not dated), C7 (not signed) and D1 (an extract). Exhibit C1 is the contract of employment dated 30th July 2008. Exhibit C6 is a mail from the claimant to Ian Petty. Exhibit C7 is another mail dated 19th January 2010 from the claimant to Ian Petty. Exhibit D1 is an extract simply labeled “Annexure A” and deals with “Company Rules, Regulations & Procedures”. It consists of pages 9 – 15. From the face of Exhibit C7, there is no doubt that it is an email from the claimant to Ian Pettey. In that wise, it remains admissible as such since emails by nature do not carry signatures. Exhibit C7 is accordingly admissible and so has evidential value for purposes of this case and would be used as such in this judgment. Exhibit D1, as an extract, does not indicate the document it comes from. Even when Exhibit C12 was put in as the fuller company handbook, Exhibit D1 is not an extract of it. In Medical and Health Workers Union of Nigeria & ors v. Federal Ministry of Health unreported Suit No. NICN/ABJ/238/2012 the judgment of which was delivered on 22nd July 2013, excerpts and annexes of documents were frontloaded by the parties without showing to the Court the fuller documents from which they were extracted. This Court reasoned that because the complete set of the documents wherefrom they were extracted were not shown to the Court in order to ascertain that they are indeed part of the documents they profess to be, or to enable the Court ascertain whether there are any other provisions of the complete documents that go contrary to the positions canvassed by the party relying on them, the said excerpts and annexes had no evidential value and so were discountenanced by the Court. In like manner, Exhibit D1 in the instant case, in being an extract, has no evidential value and so is discountenanced for purposes of this judgment. Regarding Exhibits C1 and C6, the claimant zeroed in his argument more on Exhibit C1, the contract of employment. Even here the argument of the claimant was more regarding the fact that he did not sign Exhibit C1; yet, Exhibit C1 has two components in terms of the issue of signature. First, it is actually a letter from the defendant’s Managing Director, Ian Pettey to the claimant and is titled, “Contract of Employment”. From Exhibit C1, the claimant’s retainer was changed to a fixed salary and his appointment as Branch Manager was confirmed “from 1 August 2008 original start date 1 February 2008”. Exhibit C1 then proceeds to make provisions as to remuneration package, hours of work, annual bonus, annual leave, sick leave, conditions of service, company rules, termination of employment and general. It ended by asking the claimant to sign and return same to the Payroll Department. This is the second component as to the issue of signature i.e. that the claimant is required to sign signifying that he read and understood the terms and conditions and that he confirms his acceptance thereof. Now, neither did Ian Pettey sign Exhibit C1 nor did the claimant sign to confirm acceptance of Exhibit C1 and its terms and conditions. In urging the Court to admit and use Exhibit C1, the claimant acknowledged that the general rule as provided under the Evidence Act is that documents not signed are inadmissible in evidence, although there is no general principle of law that applies immutably in all cases without exception as each case is treated in the light of its peculiar facts and circumstances. To the claimant, the drafters of the NIC Act and the NIC Rules, in their wisdom, realized that there are instances where employees accept written employment offers by conduct, and that by a mutual understanding of both parties, the formalities of the employee’s date and signature indicating acceptance may be ignored, and that a strict adherence to the provisions of the Evidence Act as to date and signature may occasion undue hardship and injustice to employees who have taken up employment under such circumstances, and with the consent or acquiescence of the employer. In support of his argument, the claimant referred the Court to section 12(2)(b) of the NIC Act and Order 19 Rule 9(ii) of the NIC Rules, stressing in the process the use of the word “shall” in Order 19 Rule 9(ii); and then argued that this Court is a special Court with Rules of Practice and Procedure different from what obtains in the regular courts. Therefore, matters before the Court are somewhat sui generis and are to be regulated by the Court’s Rules of Practice and Procedure. The claimant also relied on Abia State Transport Corporation & 2 ors v. Quorum Consortium Ltd [2009] NWLR (Pt. 1145) 29, which indicated that Rules of Court are meant to be obeyed. I must state that the arguments of the claimant appeal more to emotions than the law. For one, in arguing that there are instances where employees accept written employment offers by conduct, and that by a mutual understanding of both parties the formalities of the employee’s date and signature indicating acceptance may be ignored, and that a strict adherence to the provisions of the Evidence Act as to date and signature may occasion undue hardship and injustice to employees who have taken up employment under such circumstances, and with the consent or acquiescence of the employer, the claimant did not satisfactorily substantiate the arguments. In any case, even when section 91 of the Labour Act Cap. L1 LFN 2004 (which in any event does not even apply to the claimant in the instant case given the restrictive definition of ‘worker’ in section 91) defines a ‘contract of employment’ as one that may be oral or written, express or implied, section 7(1)(1) gives a maximum of three months after the beginning of a worker’s period of employment with an employer within which the employer must give to the worker a written statement specifying the particulars as to the conditions of work specified in paragraphs (a) – (h) therein. In other words, a contract of employment by conduct or orally must still be evidenced by written statement specifying the terms and conditions of the employment. The claimant’s argument is that even this written statement need not be dated and signed. If this were to be the case, how would that written statement be authenticated as yielding to a valid and binding document if it is not signed and dated? Secondly, the claimant stressed the use of the word ‘shall’ in Order 19 Rule 9(ii) of the NIC Rules, which provides that at the trial of a cause, “documentary evidence shall be put in and may be read or taken as read by consent”. I am not aware that this Rule talks of just any document and so takes away the requirements of dating and signing the document. In other words, is the claimant arguing that by this provision just any document (including inadmissible ones) shall be put in? Additionally, is the claimant arguing that by this provision documents must be put in by parties whether or not the documents are relevant to the issue before the Court, and whether or not the parties want to? An uncritical reading and interpretation of provisions such as this does nobody any good. Although the word ‘shall’ is used in Order 19 Rule 9(ii), it does not in any way suggest that there is a compulsion in the sense that a party must frontload or tender documentary evidence in any case before the Court. This is because parties are at liberty to prove their case in the manner and as best as they can in all cases before the Court. Thirdly, the claimant placed much emphasis on section 12(2)(b) of the NIC Act 2006 and then urged the Court to depart from the Evidence Act in the interest of justice. Agreed that this Court may depart from the Evidence Act in the interest of justice; but the question is: in whose view is this interest of justice to be taken – the claimant’s, the defendant’s or the Court’s? Where a document is not dated and signed, how is the interest of justice satisfied by using it when a plethora of cases brand such a document as one with no evidential value in the first place? For instance, by Ogbahon v. Reg. Trustee CCGG [2001] FWLR (Pt. 80) 1496; [2002] NWLR (Pt. 749) 675, an undated document is invalid except proved by oral/parol the date left out; and by Edilco (Nig.) Ltd v. UBA [2000] FWLR (Pt. 21) 792, an unsigned but certified true copy of a document will not be conferred with any evidential value. Where is the interest of justice that the claimant is pushing up to warrant jettisoning these case law authorities? The claimant did not succeed in showing the Court any. Instead, it is the argument of the claimant that the defendant did not deny the existence or authenticity of Exhibit C1 as a contract of employment between it and the claimant. In fact, that the defendant stated that it shall rely on Exhibit C1 at the trial of the suit and actually relied on it during the trial of the suit. To the claimant, therefore, since the claimant and the defendant are ad idem on the existence and authenticity of Exhibit C1 as shown in their pleadings and testimonies before the Court, Exhibit C1 can properly be admitted in evidence under the provisions of Order 19 Rule 9(ii) of the NIC Rules. That rejecting Exhibit C1 on the ground that it is not dated and signed by the claimant will amount to rejecting it on a technical ground and not on the merit, as the defendant admitted the said exhibit in its pleadings and did not controvert same in its evidence before the Court, citing Garan v. Olomu [2013] NWLR (Pt. 1365) 227 at 253. The claimant did not, however, factor in the fact that Lawson v. Afani Cont. Co. Ltd [2002] 2 NWLR (Pt. 752) 585 CA and Yero v. Union Bank of Nig. [2000] 5 NWLR (Pt. 657) 470 held that it is not within the competence of parties to a case to admit by consent or otherwise a document which by law is inadmissible. And by Kale v. Cooker [1982] 12 SC 252 and Biameri v. Federal Mortgage Bank [2002] FWLR (Pt. 121) 1858, a Court will not act on any evidence made inadmissible by express provision of a statute or law even with consent of the parties. This means that by case law authority in terms of the cases of Ogbahon v. Reg. Trustee CCGG, Edilco (Nig.) Ltd v. UBA, Kale v. Cooker and Biameri v. Federal Mortgage Bank, Exhibits C1 and C6 have no evidential value whatsoever. Can the claimant and the defendant in the instant case consent to have them admissible? The cases of Lawson v. Afani Cont. Co. Ltd and Yero v. Union Bank of Nig. answer in the negative. In consequence, Exhibits C1 and C6 have no evidential value for purposes of this judgment; and I so find and hold. In any event, there is additional authority that where an inadmissible evidence is tendered, the Court may in civil cases reject such evidence even if a party fails to object to the admissibility of such evidence. See Owena Bank (Nig.) Plc v. Punjab National Bank [2000] 5 NWLR (Pt. 658) 635 and Raimi v. Akintoye [1986] 3 NWLR (Pt. 26) 97. Despite the fact that Exhibit C1 has no evidential value for purposes of this judgment, the fact of the claimant being an employee of the defendant, having been admitted by the defendant in paragraph 1 of the statement of defence and paragraph 22 of the sworn deposition of DW, means that the parties are agreed on that fact. See Efuribe v. Ugbam [2010] 14 NWLR (Pt. 1213) 257 CA, which though held that an admission of the existence of a contract of service does not obviate the need to tender the letter of employment, yet where a party pleads the existence of contract of employment and the other party admits same, there will be no need to call evidence to prove what has been admitted. Under cross-examination, the claimant testified that he was engaged as a staff of the defendant in August 2008 as a Branch Manager (Nigeria), a fact admitted to in paragraph 24 of the sworn deposition of DW, yet in paragraphs 5 and 6 of the claimant’s sworn deposition, the claimant deposed that he was employed by the defendant as Managing Director. This piece of evidence is contradictory and so unreliable. Courts are enjoined to treat as suspicious contradictory evidence. See Akanni v. Odejide [2004] All FWLR (Pt. 218) 822 at 854 – 855 and Akanmu v. Adigun [1993] 7 NWLR (Pt. 304) 218 at 235. And when the contradictory evidence is material to the determination of the case, then a Court can discountenance it. See Lawson v. Afani Cont. Co. Ltd (supra), Sanyaolu v. State [1976] 5 SC 37 and Aremu v. Board of Customs & Excise [1965] NMLR 258. Now, by NRW Ind. Ltd v. Akingbulugbe [2011] 11 NWLR (Pt. 1257) CA, an employee who seeks a declaration that the termination of his employment was wrongful must prove the following material facts – (a) That he is an employee of the defendant. (b) The terms and conditions of his employment. (c) The way and manner and by whom he can be removed. (d) The way and manner the terms and conditions of his employment were breached by his employer. It is not the duty of the employer to prove any of these facts. See also Afribank (Nig.) Plc v. Osisanya [2000] 1 NWLR (Pt. 642) 592 CA, Adams v. LSDPC [2000] 5 NWLR (Pt. 656) 291 CA, Kabelmetal Nig. Ltd v. Ativie [2002] 10 NWLR (Pt. 775) 250 CA and Emokpae v. University of Benin [2002] 17 NWLR (Pt. 795) 139 CA. As I indicated earlier, there is no issue between the parties as to the fact of requirement (a) – both are agreed that the claimant was an employee of the defendant, at least until the termination of the employment. I have already ruled that Exhibit C1 (the said contract of employment) has no evidential value on the grounds that it is undated and not signed in terms of both the employer and the claimant himself. This means that we must look to other documents frontloaded to determine the terms and conditions of the employment, if any. The law is that more than one document may make up the terms and conditions of service in a contract of employment. See Ladipo v. Chevron (Nig.) Ltd [2005] 1 NWLR (Pt. 907) 277 CA. This is where Exhibit C12, the defendant’s Employment, Training & Safety Handbook, comes in. The argument of the claimant is that Exhibit C12 contains the terms and conditions of his employment; and the procedure for termination of employment as may be found in Exhibit C12 was breached by the defendant. In this sense, requirements (b) – (c) enunciated in NRW Ind. Ltd v. Akingbulugbe have been met by the claimant. The only question is whether thereby there is actually breach on the part of the defendant; and whether the reason adduced by the defendant for terminating the contract of employment of the claimant is one that has been so established by the defendant. By Afribank (Nig.) Plc v. Osisanya [2000] 1 NWLR (Pt. 642) 592 CA, an employer is not bound to give reasons for terminating the appointment of his employee. However, where the employer gives a reason for the termination, the onus lies on the employer to establish that reason. See also Angel Shipping & Dyeing Ltd v. Ajah [2000] 13 NWLR (Pt. 685) 532 CA. Exhibit C2 is an email sent to the claimant by Ian Pettey. The relevant part of the Exhibit for present purposes states as follows – I have a very disgruntled person questioning our modus operandi as to the sequence of events surrounding the extra charges that you levied to Dr Lawal. You raised two invoices dated 19 May 2009 outside our Crown system for customs charges. …………….. My question to you – why were these invoices not loaded within the system? Our system is fully set up to charge the clients for any removals related service and no one is allowed to create their own invoices using Crown’s name outside the system. By doing this puts serious implications onto your branch. Without raising invoices through the system, finances cannot be monitored and puts doubt on staff integrity. Please let me know why you did not invoice this through the system in the normal way and if these invoices have been paid. If they have been paid have you paid these funds into Crown’s banking account in Nigeria and if so please send me proof of these deposits! Remi, I urgently need your response as I need to get back to the source of this problem. The first issue to resolve is whether or not Exhibit C12 is a query. To the defendant, it is a query. Under cross-examination, the claimant stated that he will not describe Exhibit C2 as a query. That it is just a request for information. A careful reading of Exhibit C12 shows it to be a query. The use of the phrase, “My question to you”, followed by the question, why were these invoices not loaded within the system, attests to the fact that it is. This is followed by the request: “Please let me know why you did not invoice this through the system in the normal way and if these invoices have been paid”. Even the statements that no one is allowed to create their own invoices using Crown’s name outside the system; by doing this puts serious implications onto your branch; and without raising invoices through the system, finances cannot be monitored and puts doubt on staff integrity, all consist of veiled threats in terms of the conduct of the claimant, the explanation of which is sought, and so are all pointers to the fact that Exhibit C12 is a query and not just a request for information as the claimant argued. All of this, to my mind, yields to the conclusion that Exhibit C12 is a query from the defendant to the claimant; and I so find and hold. There are two components to the query: why the invoice was not made through the defendant’s system in the normal way; and if the invoices have been paid for. Throughout the submissions of the claimant, he sought to explain the fact of paying the invoices and why he had to go outside of the defendant’s system. Exhibits C5(e), C5(f) and C5(g) all dated 25th August 2009 consist of the response of the claimant to the query in Exhibit C12. Of note and relevance is the third and fourth paragraphs of Exhibit C5(f), which run into Exhibit C5(g), where the claimant stated as follows – The invoices were not loaded into the system as this was outside what we normally quote for and the intricacies involved would have made it impossible for the task to be accomplished. The invoices were created because I genuinely believe I was trying to assist and in the process make money for my company and open door to more business…To get a third party involved at that stage will have given the impression that I was doing something not right which was not the case. This represents another important lesson in client handling as client who imports what would ordinarily have been confiscated is helped to get the consignment delivered and did not complain throughout the whole process and when the consignment is safely delivered will now turn round after more than 2 months to complain. I express my sincere regret if the actions I took in my desire to generate revenue for my branch has caused any embarrassment or put the company in any danger. It will never repeat itself. Not satisfied with this response, the defendant issued Exhibit C5(h), the defendant terminated the employment of the claimant with immediate effect on the grounds that the claimant misappropriated payments due to the defendant and he requested a customer to make out cheque payments in his personal name and not that of the defendant. The defendant branded this conduct as fraud and breach of trust. The claimant had under cross-examination testified that he was not aware that the goods coming from South Africa were contraband. In fact, that there was no issue of contraband in them as the goods were new items and not contraband. The question remains whether this piece of evidence is correct. In Exhibit C5(f), the claimant’s reply to the query, the claimant himself stated as follows: “This represents another important lesson in client handling as client who imports what would ordinarily have been confiscated is helped to get the consignment delivered….” The question arises, what did the client import that would ordinarily have been confiscated and for which the client was helped, if not that the goods in question were contraband? Exhibit C5(c) is an email dated 23rd May 2009 from Agustin Palomino, the Branch Manager Crown Relocations Cape Town, copied to the claimant and frontloaded by the claimant himself. It states as follows – From the beginning Remi advised Mr Tiri Lawal of the special clearance charges due to these goods being contraband items (1. illegal imports and exports: goods that are illegally imported or exported e.g. goods that evade duty or are prohibited by law from being taken into or put out of a country dealers in contraband. 2. illegal trade: illegal trade, especially the illegal importing or exporting of goods) and have even supplied Mr Lawal with invoices higher than the current ones before he gave us the go ahead to ship. So there were indications of expected charges for this at destination that the client was aware of. We were advised not to ship this consignment before his arrangements were done in Lagos and only proceeded once the green light was received from destination. Should Remi advised us that he will not be able to handle this clearance we would not have taken on this export due to the nature of the goods and the import implications in Lagos. We have reduced our rate for shipment based on the fact that there will be further cost involved for the client due to the nature of the goods, import requirements etc. and places us in a very awkward situation as we have played open cards here from the beginning. Exhibit C5(c) runs into Exhibit C5(d) and concludes as follows – I am sorry if you feel that we have in any way mislead you and your client with our charges as we have tried to get this to run as smooth as possible with Remi handling all special arrangements in Lagos. I do agree that door to door cost were paid with the exclusion of the special charges due to contraband goods that Remi has advised Mr Tiri Lawal off. From all of this i.e. Exhibits C5(c), C5(d) and C5(f), the evidence of the claimant that he was not aware that the goods coming from South Africa were contraband cannot be correct and hence believable. The claimant knew that the goods are contraband as his reply in Exhibit C5(f) attests to; and I so find and hold. There is no gainsaying that dealings in contraband goods puts the business of the defendant in jeopardy in terms of adherence to legal rules. By its very nature, contraband goods presuppose a certain level of illegality as Exhibit C5(c) itself pointed out; and it had to take the ‘special arrangements’ of the claimant to sort out. By Abomeli v. NRC [1995] NWLR (Pt. 372) 451 CA, an employee owes a duty to his employer to protect its property or use same in such a way that no preventable loss would occur. When he is tardy or there is lack of diligence in his approach to his duty or he is negligent and the master by the same suffers a loss due to the unacceptable and untoward behavior of the employee, such employee is guilty of misconduct to which appropriate disciplinary action can be taken against him. By ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA, 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 employer. The case went on 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. In fact, by Ante v. University of Calabar [2001] 3 NWLR (Pt. 700) 239 CA, conduct of grave and weighty nature as to undermine the confidence which exists between the employee and his employer or a conduct which works against the deep interest of the employer, means that the employee could be lawfully dismissed summarily without notice and without wages. The claimant himself in Exhibit C5(g) expressed his sincere regret if the actions he took in his desire to generate revenue for his branch has caused any embarrassment or put the company in any danger. He concluded by saying that it will never repeat itself. Here, the claimant himself acknowledged that his conduct may have been inimical to the defendant i.e. may have put the defendant in jeopardy in terms of embarrassment and danger. For this, the defendant would be right to dismiss the claimant from its employment; yet it only terminated the claimant’s employment vide Exhibit C5(h) with the assurance that any amounts which are found to be due to him will be transferred into his bank account. An employer has the discretion to give a lesser punishment to an employee, but it has no discretion to give a higher punishment than that prescribed. See Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487. It should even be noted that by Afribank (Nig.) Plc v. Osisanya [2000] 1 NWLR (Pt. 642) 592 CA, the termination of a contract of service, even if unlawful, brings to an end the relationship of master and servant. The employee cannot be reinstated because the law leans against imposing an unwilling master especially where the confidence between the two has sunk to very low ebb with the allegation of dishonesty against the employee. From all the case law authorities cited, the defendant has the right to terminate with immediate effect as it did. This means that the argument of the claimant in terms of reliefs 1 – 4 is ill-founded. The key issue is that the declaratory reliefs sought for by the claimant in terms of reliefs 1 – 4 effectively pray this Court to declare that the claimant’s employment subsists for all intents and purposes; and this is so despite the argument of the claimant that the disciplinary procedure provided in his contract of service with the defendant was not followed, hence the termination of his employment was invalid, null and void and incapable of having any legal consequences whatsoever. Going by the provisions of paragraph 3.38 at page 100 of Exhibit C12, the claimant had argued that no interview and meeting in accordance with the dictates of Exhibit C12 were held with him. In short, that all that is stipulated in paragraph 3.38 of Exhibit C12 was not followed, and as such the termination of his employment must be invalid, null and void. There is no evidence before the Court that the defendant followed the disciplinary procedure as made out under paragraph 3.38 of Exhibit C12. However, it needs to be noted that Afribank (Nig.) Plc v. Osisanya held that the termination of a contract of service, even if unlawful, brings to an end the relationship of master and servant. And the cases of Ajayi v. Texaco Nig. Ltd [1987] 3 NWLR (Pt. 62) 577 SC, ACB Plc v. Nbisike and Ante v. University of Calabar permit dismissal irrespective of the conditions of service. The point is that even if the disciplinary procedure was not followed in terminating the claimant’s contract of employment, in the absence of facts entitling the claimant to security of tenure, the claimant cannot thereby effectively claim reinstatement as he is doing in the instant case in terms of reliefs 3 and 4. Even as there is no evidence before the Court that the defendant followed the disciplinary procedure as made out under paragraph 3.38 of Exhibit C12 (and here it should be noted that the provision regarding ‘Contract of Employment’ under paragraph 3.32 at page 94 of Exhibit C12 actually states that where a breach of employment contract has occurred, the company policy is to follow the counseling and disciplinary procedures as determined by the severity of the breach), the effect is that the termination of the claimant’s employment becomes thereby wrongful, but not “invalid, null and void and incapable of having any legal consequences whatsoever” as prayed for by the claimant. Where the termination of a contract of employment violates a term or condition of the contract, then the termination is wrongful. See Ajayi v. Texaco Nig. Ltd (supra). By BCC Plc v. Ager [2010] 9 NWLR (Pt. 1199) 292 SC, there is a distinction between a termination that is merely wrongful and one that is invalid, null and void. A payment in lieu of notice will apply where the Court makes a finding of wrongful termination in favour of the employee; but where a Court makes a finding of that the termination was null and void, then there is no termination as what the employer did would be a nullity in the eyes of the law. Where an employee is able to establish that his employment was wrongfully terminated, he would be entitled to damages; and this would be what was due to him for the period of notice. See Isievwore v. NEPA [2002] 13 NWLR (Pt. 784) 417 SC. The defendant did not follow the disciplinary procedure of paragraph 3.38 of Exhibit C12. To that extend, the termination of the claimant’s employment is wrongful but certainly not a nullity. So while the claimant is not entitled to any of reliefs 1 – 4 claimed, there is still the claim for reliefs 5 – 8 claimed as alternative reliefs. By Governor of Ekiti State v. Ojo [2006] 17 NWLR (Pt. 1007) 95, a trial Court has a choice where a plaintiff claims reliefs in the alternative. Reliefs 5 – 8 claimed are for varying sums of money. Isievwore v. NEPA held that the damages for wrongful termination is what is due to the claimant for the period of notice. Exhibit C12 does not contain any provision as to the notice period for termination of employment; at least I did not see any provision to that effect in Exhibit C12 and counsel did not refer to any either. It is Exhibit C1 that contains a provision in that regard. However, since Exhibit C1 has already been ruled to have no evidential value, recourse must be had to the common law position, which is that in the absence of a specific provision as to notice period, the period of notice shall be what is reasonable in the circumstances of the case taking into account the nature of the contract and the status of the employee. See Imoloame v. WAEC [1992] 9 NWLR (Pt. 265) 303. Faced with a similar issue, this Court in Ms. Claudia Ojinmah v. Coxdyn Nigeria Ltd unreported Suit No. NICN/LA/111/2012 the judgment of which was delivered on 27th March 2014 settled for one month as the reasonable notice period for the claimant who was an Executive Director with the defendant. In the instant case, the claimant’s evidence under cross-examination is that he is Branch Manager (Nigeria) of the defendant. In that regard, one month to my mind is the reasonable notice period; and I so hold. This means that the claimant is entitled to be paid as damages an amount equal to his one month’s salary in lieu of notice since his termination did not follow laid down procedures and it was with immediate effect. In addition, the provision regarding ‘Entitlements’ under paragraph 3.38 at page 100 of exhibit C12 provides that an “employee will be paid to the date of the termination only” and “all outstanding annual leave entitlements will be paid”. A provision such this has judicial backing. Angel Shipping & Dyeing Ltd v. Ajah (supra) laid down that as regards wrongful termination, in addition to payment in lieu of notice, an employee is entitled to any other legitimate entitlements due to him at the time the employment was brought to an end. The issues calling for resolution here, therefore, are what the monthly salary of the claimant is, and whether the claimant has proved his entitlements to warrant being paid same. In paragraph 33 of the statement of facts, the claimant pleaded that what is due and owing to him from the defendant is Eighteen Thousand, Seven Hundred and Forty-Four US Dollars, Sixty-Eight cents ($18,744.68) made up of – 1. August Salary – $4,800.00 2. Office Expenses not reimbursed – $7,396.20 3. Accrued Leave bonus for 7 months (February – August) – $2,450.00 4. Housing Allowance for one month (August) – $416.67 5. Outstanding leave (27 days) – $3,681.81 Total: $18,744.68 The claimant then deposed in similar terms this breakdown in paragraph 34 of his sworn deposition. Is the claimant entitled to all these sums? This remains the question. Exhibit C11 is a copy of the claimant’s pay-slip for the month of July 2009. From Exhibit C11, the claimant’s monthly basic salary is $3,000.00 and the monthly allowances are made up of leave bonus which is nil, transport is $1,000.00 and cell phone is $500.00. This brings the total to $4,500.00. PAYE deduction is $792.85, which if deducted from $4,500.00 gives a net pay of $3,407.15. Pension contribution is $300.00. In total then, the claimant’s monthly gross salary is $4,800.00. The claimant is claiming for August salary at the rate of $4,800. Exhibit C5(h) through which the claimant’s employment was terminated with immediate effect is dated 31st August 2009. This means that Exhibit C11 being the pay-slip for the month of July 2009, and salaries generally paid in arrears, the claimant was not paid his August 2009 salary. The denial of liability by the defendant in paragraph 15 of its statement of defence regarding the claimant’s paragraph 33 of the statement of facts is only to the extent that the claimant refused to return company properties in his possession. That denial is not that the defendant actually paid the claimant his August 2009 salary; only that it is holding it as a lien for the return of its properties. However, for his August salary, the claimant is claiming for the gross amount. Would he have received the gross amount if he was paid as due? I do not think so. This means that the claimant cannot claim the gross amount of his August salary. He is entitled to only the net pay – PAYE is not paid to employees but to the relevant tax authority, while pension contribution is also not paid directly to employees; in fact the Pension Reform Act Cap. P4 LFN 2004, as amended, does not contemplate that an employer would pay directly to an employee his pension contribution. I, therefore, and hold that the claimant is entitled to be paid by the defendant his August 2009 net salary of $3,407.15 only with the defendant remitting appropriately $792.85 as PAYE and $300 as pension contribution. The claimant’s claim for office expenses not reimbursed is unsubstantiated. The claimant did not prove what these office expenses are in terms of their nature, who authorized having to incur them, whether or not they are even actually office expenses, etc. In that regard, the claim for office expenses fails and so is hereby dismissed. The claimant claimed for accrued leave bonus for 7 months (February – August). The claimant did not show how and under what conditions he is entitled to this payment. Exhibit C11, the pay-slip has nil for leave bonus. So how the claimant became entitled to the accrued leave bonus and the amount of money in that regard were all not shown to the Court. The claim for accrued leave bonus accordingly fails and so is hereby dismissed. The claimant claimed for housing allowance for the month of August. How he became entitled to this and how much it is were again not shown to the Court. In any case, Exhibit C11 makes no provision for it. The claim for housing allowance accordingly fails and so is hereby dismissed. The claimant claimed for outstanding leave. He did show or prove to the Court what his leave days are in order to ascertain what is outstanding. Even in claiming for outstanding leave, the claimant needed to have shown the Court what part of his leave he took in order for the Court to ascertain in truth the leave outstanding. And in claiming for a monetary sum as outstanding leave for 27 days, the claimant also needed to have shown the Court the overall monetary value of his leave in order to ascertain if the amount of $3,681.81 claimed for 27 days is correct. In Hon. Joseph Daodu & 2 ors v. Akoko-Edo Local Government, Edo State & anor unreported Suit No. NIC/LA/32/2011 the judgment of which was delivered on 13th May 2014, part of the claims was for ‘balance of furniture allowance’. Because the claimants did not show to the Court the amount part-paid to them to warrant the claim for the balance, this Court refused to grant the claim for balance of furniture allowance. In like manner and in the instant case, the claim for $3,681.81 for outstanding leave fails and is hereby dismissed. What all of this means is that in terms of relief 5, the claimant is only entitled to his net salary of $3,407.15. Relief 6 is for both pre-judgment and post-judgment interest on the sum claimed. This Court does not grant pre-judgment interest. See Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374, Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd unreported Suit No. NICN/LA/48/2012 the judgment of which was delivered on March 26, 2014, Miss Odiete Hope Ogaga v. Jopa Energy Ltd unreported Suit No. NICN/LA/408/2012 the judgment of which was delivered on March 26, 2014 and Hon. Joseph Daodu & 2 ors v. Akoko-Edo Local Government, Edo State & anor (supra). However, by Order 21 Rule 4 of the NIC Rules 2007, this Court at the time of delivering judgment or making an order may direct the time within which payment of a judgment sum is to be made or other act is to be done and may order interest at a rate not less than 10% per annum to be paid upon any judgment. Relief 7 is for the sum of $4,800.00 (Four Thousand, Eight Hundred Dollars) being one month salary in lieu of notice. I held already that to the extent that the defendant did not follow its disciplinary procedure in terminating the claimant’s employment, the said termination is merely wrongful; as such the measure of damages going by case law authorities already cited is payment for the period of notice which I held to be one month. This one month’s salary in lieu is again not the gross salary. In consequence, in terms of relief 7 the claimant is entitled to only the net sum of $3,407.15 as damages. As for relief 8, which is for N2,000,000.00 (Two Million Naira) as general damages, the claim for relief 7 already awarded means that no claim for general damages can be made in the circumstances of the case. In any event, the claimant did not actually show to the Court how he came by Two million Naira as general damages to be awarded to him. Relief 8 accordingly fails and so is hereby dismissed. This leaves out the defendant’s counterclaim, which is for the sum of Fourteen Million, Three Hundred and Thirty Thousand Naira (N14,330,000.00) only being special and general damages, and for the immediate return of the counterclaimant’s company registration documents. By paragraph 25 of the statement of defence, the particulars of losses giving rise to the sum of N14,330,000.00 are as follows – 1. Cost of Toyota Tundra truck – N1,600,000.00 2. Loss of use of the truck since 31/08/09 – 7/08/12; at N10,000 per day for 750 days from 7/8/12 – till judgment at N10,000 per day – N7,500,000.00 3. Cost of Laptop – N180,000.00 4. Cost of keys – N50,000.00 5. Loss of business due to the absence of company’s vital documents – N5,000,000.00 Total = N14,330,000.00 The question therefore is whether the defendant is entitled to these sums of money as well as the return of the defendant’s registration documents. In proof of its counterclaim, the defendant in paragraphs 25 – 28 of the sworn deposition of DW deposed to the facts pleaded in terms of paragraphs 24 – 27 of the statement of defence. In essence, that a Toyota Tundra truck with registration number GS31EKY for daily operational use, a laptop, keys, company registration documents, etc are in the care of the claimant, which properties have been detained and deliberately not returned by the claimant since 31st August 2009, the date of the termination of the claimant’s employment, thus depriving the defendant their use and for which the loss of N14,330,000 has been incurred by the defendant. Additionally, that since 2009, the said properties have depreciated and have lost their values. The defendant accordingly claimed the said sum of N14,330,000 as counterclaim from the claimant. In further support/proof of the counterclaim, the defendant frontloaded and tendered Exhibits D2 – D8. Exhibit D2 is a cash receipt of N10,000 for haulage to airport dated 28-05-2012. It does not indicate what was hauled other than stating “Mr Innocent Kwenda shipment”. Exhibit D3 is an invoice for one IBM laptop dated 10th February 2008 valued at N180,000. Exhibit D4 is another cash receipt of N10,000 for haulage to airport dated 28-10-2009. Once again, it does not indicate what was hauled other than stating “Mr John Grant Shipment”. Exhibit D5 is yet again a cash receipt of N10,000 for “Haulage of Mr Christopher Lee personal effect to Port Air Shipment”. It is dated 28-10-2012. Exhibit D6 is further still a cash receipt of N11,000 for haulage to airport dated 24-05-2010. It does not indicate what was hauled other than stating “Robert Dumment Shipment”. Exhibit D7 is a cash sales/invoice dated 27th October 2008 and is for a Grade A secondhand Toyota Tundra Pick-up van valued at N1,550,000. And Exhibit D8 dated 27/10/08 is the cash receipt for the Grade A secondhand Toyota Tundra Pick-up van valued at N1,550,000. Now Exhibits D2, D4, D5 and D6 are all cash receipts issued by D-Givers Ventures. Exhibit D2 is dated 28-05-2012 and has the number 0000209 with N10,000 as payment for the haulage service rendered. Exhibit D4 is dated 28-10-2009 and has the number 0000235 with N10,000 as payment for the haulage service rendered. Exhibit D5 is dated 28-10-2012 and has the number 0000229 with N10,000 as payment for the haulage service rendered. And Exhibit D6 is dated 24-05-2010 and has the number 0000230 with N11,000 as payment for the haulage service rendered. A number of issues arise here. It is logical given the inflationary conditions of the economy that the prices of goods and services go up in accordance with the inflationary trends. Why then is it that Exhibit D6, which evidences payment of N11,000 for haulage service rendered in 2010 since it is dated 24-05-2010, was for a more costly haulage service than for instance Exhibits D2 and D5 both of which were for haulage services rendered in 2012? It should be noted that the payment in both Exhibits D2 and D5 were for N10,000. Even the payment in Exhibit D4, which is for haulage service rendered in 2009, is also for N10,000. Secondly, in terms of the dates on the Exhibits D2, D4, D5 and D6, it is logical to expect a progression in the numbering of the cash receipts. Exhibit D4 issued in 2009 has the last three digits of its number as 235. Exhibit D6 issued in 2010 has 230. Exhibit D2 issued in May 2012 has 209. And Exhibit D5 issued in October 2012 has 229. Why would a cash receipt issue in 2009 have the number 235 when that issued in 2010 has 230 (a lower number), and that issued in May 2012 has 209 (a much lower number), and that issued in October 2012 has 229 (another lower number)? A look at Exhibit D6 will show that it is of 2010 and is numbered 230. Exhibit D5 is of October 2012 and is numbered 229 indicating that it came before Exhibit D6. Yet between the two exhibits, we actually have a period of over two years (Exhibit D6 is of May 2010 while Exhibit D5 is of October 2012); and in between them is Exhibit D2 of May 2012, which funny enough is numbered 209. From all of this, what I hazard is that Exhibits D2, D4, D5 and D6 are mere contraptions and do not establish what they state as establishing. I see them as a mere attempt on the part of the defendant to get at the claimant at all cost for coming to Court. If the claimant had not come to court I do not think that the defendant would have considered its counterclaim weighty enough as to file a separate suit. In this regard, funny still is the fact that the defendant is claiming N1,600,000.00 as cost of Toyota Tundra truck, yet Exhibits D7 and D8 put the cost at N1,550,000. In contrast, the defendant is claiming N180,000 as cost of laptop the same value expressed in Exhibit D3. To worsen matters, the said truck was bought in 2008, was used by the defendant up to 31st August 2009 when the contract of employment of the claimant was terminated, and in paragraph 27 of DW’s sworn deposition, the defendant even acknowledged that especially the truck has depreciated and lost its value, yet the defendant is counterclaiming for an amount far in excess of its purchase price. Further still, why would the defendant be claiming for the cost of the truck and as well be claiming for loss of its use, putting the cost at N10,000 per day? Exhibits D2, D4, D5 and D6, which were the pieces of evidence for the cost of haulage service rendered to the defendant did not indicate that the haulage service was daily and for which the defendant can then claim N10,000 per day for 750 days as it is presently doing. The defendant is also claiming for cost of laptop at N180,000. From Exhibit D3, the laptop was bought on 18th February 2008. The defendant admits in paragraph 27 of DW’s sworn deposition that this laptop has depreciated and lost value; yet it is claiming the full purchase price of N180,000. The defendant is also claiming for N50,000 as cost of keys. The nature of the keys has not been shown to the Court. The proof that the keys actually cost N50,000 in terms of documentary evidence has not been shown to the Court either. And the Court has not been shown that the keys in question are the only ones and cannot be duplicated. Regarding the company’s registration documents, the defendant claims in two parts: the return of the documents i.e. relief (b) of the counterclaim; and N5,000,000 for loss of business due to the absence of the documents. First, what are these company registration documents? The defendant did not itemize what these documents are in order for the Court to order their return. A prayer to return company registration documents without stating what the documents are, is simply vague; although under cross-examination, the claimant stated them to be incorporation documents. Secondly, how did the defendant arrive at N5,000,000 as the value for loss of business due to the absence of the documents? In other words, what is the worth of the defendant’s business and what is the percentage of the value of the documents to that business worth? This thing about a counsel sitting in his chambers and imagining figures in the name of claims does not just put the legal profession in good light. How can a counsel put up a claim for N5,000,000 as loss of business due to absence of documents and expect just like that and without more that a Court of law would grant same? The defendant had argued that the claimant admitted to being in possession of the company properties referred to by the defendant. Under cross-examination, the claimant had actually acknowledged having company’s properties which he did not return. The claimant then listed the properties as Toyota Thunder Truck, Laptop, key to the office and incorporation documents. The claimant’s defence here is that by company policy, disengaged staff are to be paid their entitlements before they are to return company properties in their possession. I must, however, make the point that save for company registration documents, the defendant is actually not asking for the return of the properties but is asking for a sum of money representing either their value or cost for not being able to use them, which sums have actually not been proved to the satisfaction of this Court. Courts are enjoined to grant only reliefs claimed and no more. See Kalio v. Daniel [1975] 2 SC 15, Ekpenyong v. Nyong [1975] 2 SC 71, Makanjuola v. Balogun [1989] 3 NWLR (Pt. 108) 192 and Olorotimi v. Ige [1993] 8 NWLR (Pt. 311) 257. In not claiming for the return of the goods in terms of relief (a) of the counterclaim, this Court cannot make an order to that effect. It is relief (b) of the counterclaim that actually seeks the return of company registration documents. Since the claimant acknowledged being in possession of incorporation documents the order to return same can be made by this Court in terms of relief (b) of the counterclaim; and it is so made. In, however, claiming for sums of money as per the items relating to relief (a) of the counterclaim, the counterclaim of the defendant actually approximates to a claim in the tort of conversion, the normal measure of damages of which by FHA v. Sommer [1986] 1 NWLR (Pt. 17) 533 is the market value of the goods converted. By Owena Bank Nig. Ltd v. NSCC Ltd [1993] 4 NWLR (Pt. 290) 698, a claim in conversion is a claim for the value of the chattel be it goods or documents and so the claim is in the nature of special damages which must be specifically pleaded and the particulars given. From what I stated earlier about the items listed out by the defendant, I am of the firm view that the defendant did not prove any entitlement to relief (a) of its counterclaim. The claim for N14,330,000 accordingly fails and is hereby dismissed. For all the reasons given, and for the avoidance of doubt, it is hereby ordered as follows – 1. The defendant shall pay to the claimant the sum of $3,407.15 representing the claimant’s August 2009 net salary. 2. The defendant shall accordingly remit to the appropriate authorities $792.85 representing PAYE and $300 representing pension contribution. 3. The defendant shall pay to the claimant the sum of $3,407.15 representing payment for notice period, which is the measure of damages for not following the disciplinary procedure when terminating the claimant’s employment. 4. The claimant shall similarly within 30 days of this judgment return to the defendant the incorporation documents of the defendant which are in his possession. 5. The sums of money indicated in orders 1, 2 and 3 above shall be paid within 30 days of this judgment; failing which it shall attract interest at the rate of 10% per annum until liquidated. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip