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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: November 18, 2014 SUIT NO. NICN/PHC/70/2013 Between George Ozoani - Claimant And First City Monument Bank (FCMB) - Defendant (Formerly FINBANK PLC) Representation: Emeka Enyi for the Claimant C. B. Sigalo for the Defendant JUDGMENT The Claimant filed this action on the 31st day of May 2013. By an Amended Statement of Facts filed on the 31st day of January 2014, the Claimant claimed against the defendant as follows: (a) A declaration that the dismissal of the Claimant by the Defendant vide a letter dated July 8, 2010 was wrongful. (b) A declaration that the dismissal of the Claimant by the Defendant vide a letter dated July 8, 2010 was not in consonance with the Defendant’s PEOPLE MANAGEMENT MANUAL. (c) An order of this honourable court reinstating the Claimant to his former position, OR (d) In the alternative, an Order directing the Defendant to ask the Claimant to resign as stipulated in the Defendant’s PEOPLE MANAGEMENT MANUAL. (e) An Order directing the Defendant to pay the Claimant all his accrued salaries, emoluments and other entitlements in line with the Defendant’s banking policy as follows: i. N10,500,000.00 (Ten million five hundred thousand naira) only being the Claimant’s annual salary from July 8 2010 when the claimant was purportedly dismissed till the day judgment is entered. ii. N30,000,000.00 (Thirty Million Naira) representing the Claimant’s gratuity. iii. N50,000,000.00 (Fifty Million Naira) General damages for loss of work and means of livelihood. iv. 20% interest on the judgment sum from the date judgment is delivered until the date the judgment debt is liquidated. Along with the writ of summons were an affidavit of verification of endorsement, Statement of Facts, Witness’s deposition on oath, List of witnesses, list of documents and copies of documents to be relied upon at the trial. The Defendant entered appearance on the 25th day of September 2013 vide a motion for extension of time, along with a Statement of Defence, list of witnesses, witness’ deposition on oath, list of documents and copies of documents to be relied upon. These were all deemed as properly filed and served by order of court on the 1st day of November 2013. The Claimant on the 25th day of November filed a Reply to the Defendant’s Statement of Defence. This was deemed duly filed and served by order of court on the same day. It is noted however that no separate witness deposition was filed in support of same, and no oral evidence was led in support of same. The Claimant also sought and obtained leave of court to alter his complaint and amend his Statement of Facts The case proceeded to hearing on the 3rd day of February 2014. The parties fielded a witness each. The Claimant testified for himself as CW1 and tendered in evidence, 9 Exhibits marked as Exhibits CC1 – CC9. Mr. Leonard Nwaogu, a Human Resource Analyst under the performance and talent management unit of the defendant testified as DW1 and tendered in evidence, Exhibits DD1 and DD2. Hearing was concluded on the 4th day of February 2014, and at the close of the case for each of the parties, final written addresses were ordered to be filed in accordance with the rules of this court, starting with the defendant. The defendant filed its written address on the 23rd day of April 2014 and the Claimant’s written address was filed on the 3rd day of June 2014. They adopted their respective written addresses on the 7th day of July 2014 and the case was adjourned to 6th October 2014 for judgment. The date turned out to be a public holiday in Nigeria. Parties re-adopted their written addresses on the 4th day of November 2014. The case of the Claimant is that he was employed by the Defendant (then known as FIRST INLAND BANK PLC) by letter of Offer of Employment dated 4th June, 2008 as a Deputy Manager (Exhibit CC7). The defendant later changed its name to FINBANK PLC and subsequently was acquired by, and is now known as FIRST CITY MONUMENT BANK PLC. The claimant was later confirmed in his employment (by Exhibit CC8) and then promoted to Branch Manager in which position he was earning, as at July, 2010, an annual remuneration of N10,500,000.00 (Ten million, five hundred thousand naira only). (Exhibit CC9). By letter dated 8 July, 2010 (Exhibit CC3), the Defendant sought to dismiss the Claimant on the ground that the Claimant purportedly issued a payment guarantee to a sub-contractor in return for N3million gratification at the Claimant’s branch at 133 Olu Obasanjo Road Port Harcourt and following the claimant’s appearance before a Management disciplinary Committee empanelled by the Defendant. These were the reasons given by the Defendant for seeking to dismiss the claimant. The Claimant has not been able to find alternative employment since and has brought this action. The bank had issued an Advance Payment Guarantee to the Niger-Delta development Commission (“NDDC”) in relation to a contract awarded by NDDC to one Bob-Mat Nigeria Limited (“Bob-Mat”), a customer of the bank at the Claimant’s said branch. When the said Bob-Mat could not proceed with the performance of the contract and in order to salvage the project, Bob-Mat brought in another contractor, Riv-Solution development Company ltd. (“Riv-Solution”) to carry on the job to conclusion. The sub-contract by Bob-Mat to Riv-Solution was made on the understanding that Bob-Mat was to pay, in advance, the sum of N4 million to Riv-Solution and then give cheques for sums totaling N41 million, the balance of the sub-contract. The value of the sub-contract was N45million. To ensure that it would actually get paid as at when due, Riv-Solution demanded for some assurance from Bob-Mat’s banker. This was how the Claimant became involved in the matter. As hereinbefore stated, the defendant had earlier issued an APG in favour of NDDC for the contract awarded to Bob-Mat by NDDC. Riv-Solution and Bob-Mat now approached the Claimant for a separate payment guarantee to Riv-Solution which the Claimant declined to give. Instead, the Claimant guaranteed only to ensure that Riv-Solution would be paid by the said cheques issued by Bob-Mat from Bob-Mat’s account within 90 days of a certificate of satisfactory completion of the project. This satisfied Riv-Solution and it then proceeded to conclude the job. The job was concluded to the satisfaction of all concerned, and the Defendant was paid all its fees and charges making over N6million in the process. The problem that led to this case however arose when a firm of solicitors, integrity law union, by their letter of 14 January, 2010, addressed to the Defendant (Exhibit CC2) raised certain grave allegations against the Claimant which resulted in the defendant purporting to dismiss the Claimant from its employment. The said letter alleged that the Claimant had demanded gratification from Bob-Mat and Riv-Solution and had made threats to them in the event that they failed to pay the alleged gratification. Integrity law Union claimed to be acting for both Bob-Mat and Riv-Solution, which claim was vehemently denied by Bob-Mat by its letter of 14 July, 2010 (Exhibit CC6). The Defendant however went ahead to purport to dismiss the Claimant for the reasons afore stated. The claimant maintains that he was not given a fair hearing by the Defendant which did not even report the allegations raised by Integrity Law Union to the police, offered the claimant no protection at all and did not comply with the terms of the People Management Manual (Exhibit CC4) which governs the relationship between the parties. The case of the defendant is that on the 19th day of January, 2010, the Bank received a complaint from the law firm of Integrity Union, acting as Solicitors to One Messrs Bob-Mat Nig. Ltd and Riv-Solution Development Company Ltd. He said the said letter which was copied to the Area Executive Officer (Port Harcourt) and Head Operations (Olu-Obasanjo 1) of the bank was referred to the Head, Internal Control South of the Bank, contained an allegation of threat to life and demand for gratification against the Claimant. The Bank’s investigation of the said letter revealed that Bob-Mat a customer of the Bank had a contract with NDDC for which the Bank had issued APG. Bob-Mat subsequently sub-contracted the contract to Riv – Solution Development Company Ltd. to the knowledge of the Claimant but without the knowledge and approval of the Bank. The subcontractor, Riv – Solution then requested for a payment guarantee from same Bank, which the Claimant fraudulently issued to the subcontractor on a demand for the sum of N5,000,000.00 (Five million naira) from the sub-contractor. The Claimant could not give any convincing reason why he issued a Payment Guarantee written and signed only by him contrary to known banking practice. The payment guarantee was issued and signed solely by the claimant without any approval contrary to known banking practice and the claimant did not disclose to his supervisor the engagement of the subcontractor who took over the contract. According to the defendant, it was also discovered in the course of the investigation that the claimant had received from the Managing director of Bob-Mat, a payment stop order in which it was claimed that two cheques were issued to him (i.e. the Claimant) for an agreed understanding which he failed to fulfill. The Claimant also failed to inform his supervisor of the payment stop order. Following the complaint against the claimant and the findings of the Bank from its investigation, the claimant was invited to appear before the defendant’s Management disciplinary committee and was given ample opportunity to defend himself against the complaint made against him. The Disciplinary Committee found that the Claimant’s conduct constituted a gross abuse of his office as the Branch Manager of the Bank. It forwarded its report to the Executive Management Committee of the Bank in line with its procedure pursuant to which the claimant was dismissed. To the defendant, considering that the claimant was summarily dismissed, he had no right to any salaries, emoluments and or any other entitlements upon his dismissal. The Defendant raised the following issues for determination: 1. Whether upon the preponderance of evidence the Claimant was wrongfully dismissed from the Defendant’s employ? 2. Whether in the circumstance of this case the Claimant can be reinstated by the order of court or be granted his relief “to be asked to resign”. 3. Whether upon the dismissal of the claimant, he is entitled to any claim for salaries, emoluments, gratuity and or any other entitlement from the Defendant? The defendant submitted that the following facts are not in dispute: • The claimant was a Branch Manager with FinBank plc. at the time of his dismissal. • The Defendants, First City Monument Bank Plc (FCMB) acquired Fin Bank Plc. • The claimant executed Exhibit “CC1” in favour of the Riv – Solution. • FinBank Plc. and the claimant received Exhibit “CC2” from Messrs Integrity Law Union alleging demand and receipt of gratification against the Claimant. • FinBank Plc queried the Claimant through internal memos by email and the Claimant responded. • The claimant subsequently appeared before the FinBank’s Disciplinary Committee on the bank’s invitation before his eventual dismissal. • The Claimant was dismissed from FinBank’s employ by Exhibit “CC3”. In arguing issue one (whether upon the preponderance of evidence the Claimant was wrongfully dismissed from the defendant’s employ), it was the submission of learned counsel to the defendant that it is trite law that in a civil case the standard of proof required for the proof of a claim is determined on the preponderance of evidence and the balance of probabilities and the party who asserts a claim is bound to prove it. See Purification Technique (Nig) Ltd. vs. Jubril (2012) 18 NWLR (Pt. 1331) 109 at 146 paras. E. – F, See Section 131 – 133 (1) of the Evidence Act, 2011, Eyo vs. Onuoha (2011) 11 NWLR (Pt. H – G SC. Where the Claimant’s claim is for a declaratory relief, he is bound to proof same by credible evidence, even where the relief sought is not opposed by the other party. See Akpan vs. U.B.N Plc (2011) 2 NWLR (Pt. 1231) 399 at 413 para. A – E, A.G Rivers State v. A.G. Akwa-Ibom (2011) 8 NWLR(pt. 1248) 32 at 172 para. F – H. The Claimant by his Amended Statement of claim sought amongst others the following reliefs; i. A Declaration that the dismissal of the Claimant by the Defendant vide a letter dated July 8, 2010 was wrongful. ii. A declaration that the dismissal of the Claimant by the Defendant vide a letter dated July 8, 2010 was not in consonance with the Defendant’s PEOPLE MANAGEMENT MANUAL. Therefore the onus of proving the claims is on the claimant who asserted that he was wrongfully dismissed. In Eze vs. Spring Bank Plc (2011) 8 NWLR (Pt. 1278) 113 at 149 the Supreme Court held per Rhodes Vivour, JSC thus; “to determine whether the dismissal of an employee was correct or wrong, the terms of the employment of the aggrieved employee must be examined to see whether the correct procedure was followed. Where there is a departure from the prescribed procedure or a violation of the elementary rules of natural justice, then the dismissal is unlawful.” Counsel further submitted that from the foregoing, the onus is on the Claimant to show that his dismissal was not in accordance with his Contract of Service. The Claimant must therefore place before the Court his contract of service which he claims have been breached by the Defendant. The Claimant in proof of his Contract of Service tendered in evidence Exhibit “CC4” the PEOPLE’S MANAGEMENT MANUAL of First Inland Bank Plc. The Claimant in paragraph 1 of his Amended Statement of Facts pleads; “That the claimant was employed in July, 2008 as a Deputy Manager with FinBank Plc. before they were acquired to become First City Monument Bank Plc.” Exhibit “CC3”, Claimant’s dismissal letter clearly shows that he was dismissed as a staff of FinBank Plc. as Exhibit “CC3” is the letterhead of Fin Bank Plc. and same is executed for FinBank Plc. In other words, it is not in dispute that Claimant was employed as a staff of Fin Bank Plc. and was dismissed as a staff of the FinBank Plc. Counsel submitted that there is no pleaded fact before this court that Fin Bank Plc. is same as First Inland Bank Plc. Further, there is no pleading before the court that the Claimant was a staff of First Inland Bank Plc. Infact, First Inland Bank Plc. is not pleaded anywhere. He also submitted that the claimant has not led any evidence on the relevance of exhibit “CC4”. In Gov. Kwara State v. Eyitayo (1997) 2 NWLR (485) 118 at 129 paras. F-H the Court of Appeal held per Ogebe, JCA (as he then was); “The Applellant merely tendered Exhibit C without leading evidence to connect it with the case…..It is not the duty of the court to do its own independent research into Exhibit C and come out with the result of its private investigation. It is the duty of any party that tenders a document to establish before the court its relevance and what it expects the court to do with it. It is not the duty of the court to do its own private investigation” In the absence of evidence before it, the court cannot in this case make an independent research to determine any relationship between the Claimant and first Inland Bank Plc. The defendant therefore urged the court to hold that there are no facts pleaded by the Claimant upon which Exhibit “CC4”, PEOPLE’S MANAGEMENT MANUAL of First Inland Bank Plc, is based. It was Counsel’s further submission that although a document may be admitted in evidence, it will have no probative value where it is not relevant. See: Haruna vs. A.G. Federation (2012) 9 NWLR (Pt. 1306) 419 at 439 para. D. Although Exhibit “CC4” was admitted in evidence without objection, it nevertheless has no probative value since it is not pleaded and there is no evidence before the court disclosing its relevance. Counsel urged the court to so hold. To the defendant, the claimant has failed to place before the court the document(s) which constitute his Contract of Service which he alleges has been violated and/or breached by the defendant. The Defendant in discharging any onus which may be placed on it by law to show that FinBank Plc followed the procedure under claimant contract for his summary dismissal, tendered in evidence Exhibit “DD2” the PEOPLES MANAGEMENT MANUAL of FinBank plc. While admitting that the content of Exhibit “CC4 and “DD2” are fundamentally same, Counsel to the defendant submitted that in considering whether the claimant was dismissed in accordance with his contract of Service, the appropriate contract of Service the court will be bound to consider in the circumstance will be Exhibit “DD2”, the PEOPLES MANAGEMENT MANUAL of FinBank Plc. At page 29 of the PEOPLES MANAGEMENT MANUAL of FinBank Plc. on disciplinary procedure/Measures, Exhibit “DD2” it is provided that; “Observance of Bank’s Rules and Regulations is necessary to ensure the smooth running of the organization. Any breach of the rules and regulations and other cases of indiscipline shall be dealt with as follows; Where the matter is grave enough, the offending staff shall be referred to the Disciplinary Committee (after a thorough investigation into the matter) for appropriate sanction”. Page 33 of the Manual on Disciplinary Committee provides that; (a) “A Management Disciplinary Committee shall be constituted with the following terms of reference. i. To look into major infractions in the bank, with the aim of recommending appropriate sanctions to executive management, or otherwise. (b) “Management decision on the recommendations of the disciplinary committee shall be final” The claimant in paragraph 19, 20, 21 and 22 of his amended Statement of Claim and paragraph 13, 14 and 15 of his deposition on oath stated that; 19. “the 2 (two) contractors in what may be best described as a grand conspiracy jointly and severally wrote a disturbing and libelous letter to the Defendant as follows: (a) From their solicitors integrity law union purportedly stopping two (2) cheques valued at N3,000,000.00 (Three million naira) which they purportedly issued to me as gratification to issue the letter of confirmation. (b) From their Solicitors integrity law union that the claimant deceived them to believing that the Defendant will pay as soon as it receives a completion certificate from NDDC but are deceived to find a compulsory 90 (ninety) days from the date of presentation of the certificate of completion… 20. that the claimant clearly state that he did not request nor was given any cheque of N3,000,000.00 (Three million naira) as gratification from Messrs.’ Bob-Mat nor Riv-Solution before writing of the confirmation letter… 21. That the defendant on receiving the said letter from the solicitors issued queries to the Claimant and immediately dismissed the claimant… 22. That the issue of receiving gratification and threat to live are serious criminal offence. 23. The claimant avers that he knows as a matter of fact that the alleged offence he was said to have committed does not attract the punishment of dismissal by the defendant. Counsel to the defendant submitted that from claimant’s pleadings above, the claimant was dismissed on grounds of receiving gratification, even though under cross-examination, he denied same. His denial under cross-examination is a material contradiction of the fact above. In Eze v. Okoloagu (2010) 3 NWLR (1180) 183 at 216 the court held thus: “A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated…. Two pieces of evidence contradict one another when they are inconsistent”. Counsel urged the court to hold that the above material contradiction is fatal to the claimant’s case and same should be resolved against him. See Fatoba vs. Ogundahunsi (2003) 14 NWLR (840) 323 at 347 para. D – F. Exhibit “CC2”, the petition/complaint written against the claimant and Exhibit “CC3”, the dismissal letter tendered in evidence by the Claimant, clearly raises the issue of gratification against the claimant and both documents disclose the fact that the claimant was dismissed on grounds of receiving gratification respectively. Exhibit “CC3” provides; “We refer to the case of “Issuing a payment guarantee to a Sub-Contractor in Return for N3 million gratification… and your appearance before the Management Disciplinary committee in respect of same. Following a further review of your role in the matter and consideration of the Disciplinary committees report, Management has given its directive for your dismissal. Consequently, you are hereby Dismissed from the Bank’s service effective immediately” By paragraph 22 of the Claimant’s Amended Statement of Claim and paragraph 15 of his deposition on oath, the claimant admits that the issue of receiving gratification is a serious criminal offence. Counsel submitted that the offence was “grave enough” to warrant the Claimant being referred to the disciplinary committee, more so as the claimant admits, it raises criminality. The Defendant (as Fin Bank Plc. at the time) accordingly, in accordance with Exhibit “DD2” (Claimant’s contract of Service), after thorough investigation, referred the Defendant to its Management Disciplinary Committee. The Claimant however in paragraph 21 of his Amended Statement of Claim states that: “The defendant on receiving the said letter from the Solicitor (i.e. Exhibit “CC2”) issued queries to the Claimant and immediately dismissed him. But in paragraph 14 of his deposition on oath the claimant stated that; “After the receipt of Exhibit “CC2”, the petition from Messrs Integrity Union against him, the Defendant constituted a Disciplinary Committee that promptly dismissed him from their employ.” Under cross-examination however, the Claimant (as CW1) stated that; “The letter dated 14th day of January, 2010 (Exhibit “CC2”) was not received by me but my secretary. It was brought to my attention after I was issued a memo by the Bank on the complaint (i.e. Exhibit “DD2”) .. I saw the letter before the bank started raising issues. When I checked my box I saw a memo from the bank. They were asking questions in respect of Exhibit “CC2” and I responded to the memos. There were several memos and responses. I do not have them.” He also said under cross-examination; “When this issue arose I was sent a memo and I was invited before a disciplinary committee. They asked me what transpired but before I could answer they shut me down. I do not think I was given fair hearing. I was sent several memos with questions, I responded to them. They were sent by email.” Claimant also stated under cross-examination: “I did not receive any letter dated 13th January, 2010 (i.e Exhibit “DD1”). I however have seen the letter and I saw it when the bank was interrogating me on the issues raised in the letter of 14th January, 2010 (i.e. Exhibit “CC2”). The defendant submitted that in spite of the discrepancies in the Claimant’s evidence above, fundamentally, the Claimant admits the following facts: • That the Bank received the said exhibit “CC2”, • That the Bank sent him several memos (queries) by email with questions on the issues raised in Exhibit “CC2” and he responded to them. • That he was invited before a disciplinary committee and was interrogated on the issues raised in exhibit “CC2” and “DD1” DW1 in his evidence in chief stated in paragraph 9 of his statement on oath that: 9) “On the complaint made against the Claimant and the investigation of the bank, the claimant was invited to appear before its Management Disciplinary Committee”. 10) The claimant was accorded all the opportunity necessary to defend himself against the allegation made against him”. Under cross-examination, DW1 stated thus; “I maintain my stand that he (i.e. the defendant) was investigated. We took into consideration Exhibit “DD1” (i.e. the letter from Bob-Mat for cancellation of cheque or payment stop order) when dismissing the claimant. The matter was not reported to the police but we did our internal investigation. From our investigation and the complaint against him, the Defendant found that the claimant was issued two cheques for N1.5m each but he demanded N5million from the complainants.” The above evidence of DW1 having been unchallenged and uncontroverted, counsel urged the court to accept same as proof of the fact that which they seek to establish. See Mil. Gov. Lagos State vs. Adeyiga (2012) 5 NWLR (1293) 291 at 331 -332 para H – A, 337 para. A. He submitted further that from the evidence as elicited from CW1 under cross-examination and as buttressed by the uncontroverted evidence of DW1, the Bank (i.e. Defendant) on receipt of Exhibit “CC2” in line with claimant’s Contract of Service, Exhibit “DD2”; i. Queried the claimant (through internal memos) to which he responded. ii. The bank investigated the complaint against the claimant and even discovered that two cheques were issued to the claimant in furtherance of the gratification and same was stopped or cancelled by Exhibit “DD1” and that claimant executed exhibit “DD1”, the Payment Guarantee solely without approval from his Supervisors. iii. The bank seeing that the matter (being grave) and could not be discharged with a query referred the claimant to its Management Disciplinary Committee which made recommendation to the Executive Committee of the bank. iv. The Management of the bank in the exercise of their powers as provided by Exhibit “DD4”, the People Management manual of Fin Bank Plc. took the final decision dismissing the claimant on its findings on the role of the claimant on the issue of receiving gratification. v. Claimant was therefore issued Exhibit “CC3” the dismissal letter. See; Ekunola v. C.B.N. & Anor (2013) 15 NWLR (pt. 1377) 224 at 268 SC. For emphasis, Exhibit “CC3” which defendant’s lone witness, DW1 also identified as the dismissal letter given to the Claimant by Fin Bank Plc. clearly states in paragraphs 1, 2 and 3 that: “We refer to the case of “Issuing a Payment Guarantee to a Sub-Contractor in return for N3 million Gratification… and your appearance before the Management Disciplinary Committee in respect of same. Following a further review of your role in the matter and consideration of Disciplinary Committees report, Management has given it directive for your dismissal. Consequently, you are hereby Dismissed from the Bank’s service effective immediately.” Counsel went on that the Claimant having admitted that the issue of receiving gratification and threat to life are serious criminal offences, it is trite in law that facts admitted need no further proof. Exhibit “CC3” as found above clearly shows that the claimant was dismissed on ground of receiving gratification, which counsel submits, constitutes a gross misconduct. In Nwosisi vs. A.C.B. (1995) 6 NWLR (pt.404) 658 at 686 paras. D – F, the Supreme Court stated thus: “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 employer.” By Exhibit “DD2” any infraction of the Bank’s regulation which has KEY 9 on the sanction grid is considered gross misconduct and the punishment is dismissal. See; pages 29 and 30 of Exhibit “DD2” (and even pages 29 and 30 of Exhibit “CC4” assuming without conceding that it was relevant and had any probative value). The Claimant was dismissed on grounds of receiving gratification. He executed Exhibit “CC1” making the bank irrevocably liable to Riv-Solution Development Company (which was not even a customer of the bank) without the consent and knowledge of his Supervisors and the Bank while corruptly enriching himself against the Bank’s regulations. Claimant himself admits that the allegation against him raises issues of criminality. Based on the corrupt inducement he, executed a Payment Guarantee, Exhibit “CC1” alone without the knowledge and approval from his Supervisors putting the bank. Claimant admits the facts that he executed Exhibit “CC1” without the knowledge and approval of his supervisors under cross-examination. Although the claimant appeared to have raised a defence in paragraphs 2f-j of claimant’s Reply to Statement of Defence, he did not lead any evidence in support of the said averments either by deposition on oath or oral evidence. There is no evidence on the facts as pleaded in paragraphs 2f-j of Claimant’s Reply to Statement of Defence in Claimant’s only adopted deposition on oath. Counsel therefore submitted that the pleaded facts in paragraphs 2f-j of Claimant’s Reply to Statement of Defence are deemed abandoned and urged the court to so hold. Counsel to the defendant submitted and urged the court to hold that the allegation of receiving “gratification” (which in another word is “Bribe”) is a corrupt practice and it is for the said reason that Agencies such as the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practice Commission (ICPC) which this court can take judicial notice of are referred to as Anti-Graft and or Anti-Corruption Agencies. By Item 11 at page 30 of Exhibit “DD2” which relate to “Corruption or attempting to corrupt” the punishment under the Sanction Grid (key 9) on page 29 is dismissal and at page 34 of Exhibit “DD2” paragraph F under the heading “Disciplinary Committee”, it is stated thus: “Management decision on the recommendations of the disciplinary Committee shall be final” The Management of the bank having approved the sanction of Claimant’s dismissal, counsel submitted and urged the court to hold same as final. Relying on the Supreme Court decision in Eze v. Spring Bank (Supra), Counsel submitted that it is only where there is a departure from the procedure as provided by the Claimant’s Contract of Service or violation of the elementary rules of natural justice that claimant’s dismissal by the Bank can be held to be wrongful. He went on that from Paragraph 3.41 (i)-(v) above, the Defendant complied fully with the procedures required for Claimant’s dismissal under Exhibit “DD2’ and he was accordingly accorded fair hearing through the queries and even appearances before the Disciplinary Committee of the bank. In Eze vs. Spring Bank (Supra) pages 132-133 paras. . D-H, the Supreme Court in held that: “On the accepted general principles, an employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct…and gross misconduct has been identified as a conduct that is a grave and weighty character as a to undermine the confidence which should exist between an employee and the employer. So, too, working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss the employee”. Counsel submitted that the Claimant has failed to disclose any infraction, violation or breach of his Contract of service with FinBank plc with respect to his dismissal by the bank as provided by Exhibit “DD2”, the People Management Manual of FinBank Plc. and or any other Contract of Service binding the Defendant and he urge the court to so hold. The Claimant contends that the allegation of gratification and threat to life ought to have been reported to the Police for proper investigation and prosecution if necessary and that for the defendant to assume the position of a court of law to try and convict him of criminal offences without jurisdiction is wrongful, illegal and unconstitutional and an infringement on his right of fair hearing, and that the Defendant has not metamorphosed into a court of law, and as such, cannot sit in judgment against any of its staff for criminal charge(s). In Eze v. Spring Bank (Supra) the Supreme Court per Rhodes Vivour, JSC at page 149 para. B; in identifying the grievance of the Appellant stated: “the grievance of the appellant is that his dismissal was wrong because he was not given a fair hearing. This to say he was not prosecuted in a court of law before he was dismissed.” The court held at pages 134 paras. F-H “It is no longer the law that where an employee commits acts of gross misconduct against his employer which act also constitute criminal offence under any law, the employer has to wait for the outcome of criminal prosecution of the employer before proceeding to discipline the employee under the contract of service or employment.” The court then held per Mohammed JSC, at pages 134 paras. D-E; “The complaint of the appellant in the present issue is that what the court below termed as breaches committed by the appellant are in fact criminal allegations of forgery and foreign exchange malpractices for which the appellant ought to have been charge to court and prosecuted before proceeding with his dismissal. Unfortunately for the appellant, this is not the present position of the law governing master and servant in the interpretation of contract of employment.” The court at pages 130 – 131 paras. E-C further held thus; “In a mere master and servant relationship, the servant can be dismissed for dishonesty or fraud in his employment. The master does not need to report the matter to the police or wait for the conclusion of a subsequent criminal trial before dismisses his errant employee. He does not even have to reach a decision on the alleged crime.” According to the defendant, the Claimant in paragraphs 4b of his Reply to Defendant’s Statement of Claim that his employment was both statutory as well as contractual, he has however failed to place before the court his contract of Service. Counsel for the defendant submitted that the case of Eze. vs. Spring Bank (Supra) 130 paras E-H is on all fours with the instant case, more so as the disputes are between private commercial banks and their staff. The court recognized in Eze. v. Spring Bank (Supra) that the contract of service is that of master and servant, since the staff is not a Public Servant whose employment is governed by statues or civil service regulation. The Claimant’s contention is that his dismissal is wrongful as it was not done in accordance with the Peoples Manual. It is the defendant’s submission that neither Exhibit “CC4”, the purported manual of First Inland Bank Plc tendered by the Claimant nor Exhibit “DD2”, the Manual of Fin Bank Plc tendered by the Defendant is a Statute or Civil Service Regulation. He therefore submitted that the Defendant had no obligation under the Contract of Service, Exhibit “DD2” to make a report to the police and or seek the prosecution of the Claimant before dismissing him from its employ. He urged the court to so hold. The Claimant claims in paragraphs 12 and 13 of his deposition on oath stated that: (12) “When he was informed of the letter (Exhibit CC2) he confronted Mr. Bob Emesiobi (MD of Bob-Mat) who vehemently denied ever approaching a law firm, integrity law union which wrote the letter and that Mr. Emesiobi denied ever knowing such a letter was written. (13) The said Mr. Emesiobi consequently wrote to the Defendant bank disclaiming the letter written to the bank” The said letter written by Mr. Emesiobi admitted as Exhibit “CC6” is dated 14th July 2010. Counsel urged the court to note that while Exhibit “CC2” the complaint is dated 14th January, 2010, the claimant was dismissed by Exhibit “CC3” dated 8th July, 2010. In other words Mr. Emesiobi purportedly wrote the said letter after the Claimant had been dismissed. This is collaborated by the evidence of CW1 elicited under cross-examination: “After I saw the letter (Exhibit CC2), the Bank had started raising issues, so there was nothing I could do. I did not see the need to bring it up with those who commissioned the letter because they had started talking to my supervisors. I am aware of the grave allegations in this letter. I did not reply the letter…I did not talk to those who wrote the letter throughout the period before my dismissal because the issue was already being investigated by the Bank….I have my customers’ phone numbers…. I had one on one relationship with Mr. Emesiobi and since we gave him APG that gave me opportunity to have a deeper relationship with him…. Inspite of the relationship I have with Mr. Emesiobi I did not talk to him after I received the letter. I did not call him because the issue was already with the Management of the bank …. Mr. Emesiobi recounted the letter after people met him on the falsity of his letter”. The above evidence of the claimant (CW1) elicited under cross-examination is another material contraction of his Evidence in Chief in paragraphs 12 and 13 of his deposition on oath as it is clear that Exhibit “CC6” was only written after the claimant was dismissed from his employ. See Eze v. Okoloagu (Supra); Fatoba v. Ogundahunsi (supra). Counsel submitted that CW1 is not a witness of truth whose evidence this Honourable court can rely on. See Ukaegbu v. Nwololo (2009) 3 NWLR (pt. 1127) 194 at 224 paras. E-F. The credibility of a witness is important to the determination of the weight to be attached to the evidence of a witness and this can be inferred from his conduct in court. See Olonade vs. Sowemimo (2006) 2 NWLR (pt. 963) 30 at 40 para. B. He urged the court to hold that CW1 is not a credible witness whose evidence this court can rely on, as he has given conflicting evidence that are material in this case, making his case very unreliable. See C.D. C. Nig. Ltd. vs. SCOA Nig. Ltd. (2007) 6 NWLR (pt. 1036) pg. 300 at 327 para. A. Exhibit “CC6” from the evidence of CW1 under cross-examination, is an afterthought as “it was written after people met him (i.e. Mr.Emesiobi) on the falsity of his letter”. It is noted however that Mr. Emesiobi did not recount Exhibit DD1, the letter for cancellation of the two cheques, which was written by himself as MD of Bob-Mat. Exhibit “CC6” is therefore of no moment, and same should be discountenanced by this honourable court. From the preponderance of evidence before the court, Counsel submitted that the claimant was lawfully dismissed and urged the court to resolve this issue in favour of the Defendant. In arguing Issue two, (whether in the circumstance of this case the claimant can be reinstated by the order of court or be granted his relief “to be asked to resign”), it is the submission of counsel to the defendant that this is a simple case of employer and employee not covered by statutory rules, as the Contract of Service is governed by Exhibit “DD2” (the Bank Staff regulation Book). More so, FinBank Plc and/or the Defendant is a private commercial bank. The relationship between the claimant and the Bank is that of a master and servant. See Eze v. Spring Bank (Supra) pt. 130 -131 paras. E-C. In Eze v. Spring Bank (Supra) 141 paras. B-F the Court held per Chukwuma Eneh; “The serious nature of the allegations against the appellant goes to the root of his contract of service. No employer albeit a banker for that matter would retain a servant in the circumstances….the appellant is opining if I may further make my reasoning clearer that his dismissal being null and void for want of fair hearing, he should on its being so declared be reinstated as to his position as claimed in his writ of summons. This reasoning with respect represents a complete misconception of the law applicable to this type of cases as having arisen from appellant’s contract of employment i.e. under master and servant relationship.” In spite of having earlier argued on issue 1 that the claimant was lawfully dismissed, yet, assuming without conceding that the dismissal was wrongful Counsel submitted that the claimant having been dismissed cannot be reinstated by the Defendant as his employment does not have any statutory flavor. The claimant claims in the alternative he should be asked to resign. Counsel to the defendant pointed out that by item 11 at page 30 of Exhibit “DD2” which relate to “Corruption or attempting to corrupt,” the punishment under the Sanction Grid (Key 9) on page 29 is dismissal and at page 34 of Exhibit “DD2” paragraph F under the heading Disciplinary Committee it is stated thus: “Management decision on the recommendations of the disciplinary committee shall be final”. The Management of the Bank by Exhibit “CC3” took its final decision dismissing the claimant. Counsel urged the court to hold that by the claimant’s Contract of Service, the decision of the Bank’s Management remains final and he cannot be reinstated. He went further that the Claimant, having not disclosed by any credible evidence the basis of his claim that he be asked to resign, the court ought to discountenance same. He then urged the court to resolve this issue in favour of the defendant. In arguing Issue Three, (whether upon the dismissal of the claimant, he is entitled to any claim for salaries, emoluments, gratuity, general damages for loss of work and or any other entitlement from the defendant), Counsel to the defendant submitted on the authority of Eze vs. Spring Bank (supra) 149 that an employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct. See also Nwosisi v. A.C.B. Ltd. (supra) pages 681 paras. G-H. He went further that “Working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss an employee.” Counsel adopted his earlier argument in paragraphs 4.21 – 4.23, 4.36 and 4.44 of Issue 1, that the claimant was summarily dismissed having been found guilty of gross misconduct. On the above authorities cited therefore, Counsel submitted that the claimant having been summarily dismissed from the employment of Fin Bank Plc. for gross misconduct, is not entitled to his claim for salaries, emoluments, gratuity, general damages for loss of work and or any other entitlement from the Defendant? Counsel went further that Exhibits “CC7”, “CC8” and “CC9” pleaded by the claimant at paragraph 4(e) of his Reply to Defendant’s Statement of Defence, were wrongly admitted. No evidence was led on the said documents by the Claimant. Pleaded facts on which no evidence is led are deemed abandoned. See: S. A. F. P. & U.V.U.B.A. (supra). Since no evidence oral or by deposition was led on the said documents before they were tendered and before they were admitted, they are deemed abandoned and the court ought to not to have admitted them. Counsel urged the court to note that said claimant’s Reply to Defendant’s Statement of Defence was deemed properly filed on the 25th day of November, 2013 on grant of his application to file same out of time. No deposition was filed in support and at the hearing no evidence was led on same. He therefore submitted that in the circumstance, the documents were inadmissible and should be expunged. See: B. Mang v. M/S O.I. Ltd. (2007) 14 NWLR (1053) 109 at 139 para. H where the Supreme Court held that “A trial court has the right to expunge from the record a document which it wrongly or wrongfully admitted…. A party is free to call its attention to the document at the stage of address.” The court further held at page 151 para D that: “in any event, it can ignore it or discountenance the same.” Counsel therefore urged the court to expunge Exhibits “CC7”, “CC8” and “CC9”. In the event that the court decides otherwise, Counsel submitted that the said documents have no probative value as no evidence was led on them. See: Omega Bank v. O.B.C. (2005) 8 NWLR (pt. 928) 547 at 585 paras. A-C. In A.N.P.P. v. Usman (2008) 12 NWLR (pt. 1100) 1 at 89 paras. F-H the court held that; “In the instant case, the tribunal was of the opinion that Exhibits R4, R10, R11 and Exhibits…. have no probative value because they were dumped on it without any explanation from the parties who tendered them. The tribunal was right in attaching no probative value to the documents and ignoring them in his judgment.” Counsel urged the court to discountenance or ignore Exhibits “CC7”, “CC8” and “CC9” tendered by the Claimant and admitted by the court. He added that the Claimant had failed to prove his claim to the salaries, gratuity and loss of work and means of livelihood as claimed, and urge the court to resolve this issue in favour of the Defendant and to dismiss the claimant’s claim in its totality. The Claimant in his final address filed on the 3rd day of June 2014 raised the following two issues for the determination of the court: 1. Whether the purported dismissal of the claimant by the defendant on 8th July, 2010 was not wrongful. 2. Whether the Claimant is not entitled to the reliefs he seeks. In arguing issue one, it is the Claimant’s position that his summary dismissal by the defendant was wrongful, having been done without regard to natural justice and fair hearing, and without compliance with the agreement between the parties. Claimant’s counsel submitted that it is trite law that the Claimant is entitled to fair hearing from the Defendant before the Defendant can properly dismiss the claimant as the defendant sought to do. In ARINZE vs. FIRST BANK OF NIGERIA PLC. (2004) 8 MJSC 94 at page 104 para. A-B, the Supreme Court held that while an employer is entitled to dismiss an employee in appropriate cases, where the alleged misconduct borders on criminality, the employer is required to give the employee fair hearing by confronting him with the accusation made against him and affording him the opportunity to defend himself. See also OLATUNDBOSUN vs. NISER (1988) 3 NWLR (Pt. 80) 25 at 56 – 57 and YUSUF vs. UNION BANK OF NIGERIA LTD. (1996) pt. 457 para 632. The right to fair hearing is so fundamental that it can neither be waived nor taken away even by statute, whether expressly or by implication. In ZIIDEEH vs. RIVERS STATE CIVIL SERVICE COMMISSION (2007) 4 MJSC 150 at 160, the Supreme Court held that a domestic tribunal (such as the disciplinary Committee empanelled by the defendant herein) with quasi-judicial jurisdiction, is bound to observe the rules of natural justice enshrined in Section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria (now Section 36(1) of the 1999 Constitution). The apex court further held in this case that any decision reached in breach of this constitutional provision is a nullity and liable to be set aside. His lordship Mahmud Mohammed, JSC put it thus at page 160, paras. B to C- “The right of a person to a fair hearing is fundamental to our concept of justice that it can neither be waived nor take away be a statue, whether expressly or by implication. Fair hearing is not only a common law right but also a constitutional right”. He goes on to say in paras G-A (pg. 160 – 161) “There is no doubt that the Respondent which is a domestic tribunal with quasi judicial jurisdiction, is bound to observe the rules of natural justice enshrined in Section 33(1) of the 1979 constitution. See WILSON vs. A.G. BENDEL STATE (1985) 1 NWLR (Pt 4) 572 and EX-PARTE, OLAKUNRIN (1985) 1 NWLR (Pt. 4) 652. It is also well settled that the consequence of a breach of the rules of natural justice as contained in section 33(1) of the 1979C Constitution of the Federal Republic of Nigeria (now Section 36(1) of the 1999 Constitution) is that the decision reached thereby is a nullity and liable to be set aside.” And further, …”the principle is applicable to both private and public employments; in other words, it does not matter whether or not the contract of employment savours with statutory flavor” as stated by His Lordship CHUKWUMA – ENEH, JSC in EZE vs. SPRING BANK PLC (2011) 12 M.J.S.C. (Pt. 1) p. 1 at 29 paras. B-C. The claimant testified to the effect that he received a memo asking him to appear before a disciplinary committee, that when he appeared before the Committee, they ask him what transpired but that before he could explain, they shouted him down, asked him to go and that he would hear from them. This was all the hearing the claimant received from the defendant’s Management Disciplinary Committee. It is submitted that both the tenor and content of the Defendant’s witness’s testimony support the evidence of the claimant. DW1 stated that the Defendant invited the claimant to the Disciplinary Committee, that they were “convinced that he was guilty of the offence and he was dismissed”. When asked whether Bob-Mat, on whose behalf the letter of Complain, Exhibit CC2, was purportedly written and who was the defendant’s customer directly involved in the transaction and whose cheques were allegedly issued to the claimant, was invited to the disciplinary committee’s sitting, DW1 responded that “he was spoken to”. So that the claimant was never afforded the opportunity of confronting Bob-Mat. Counsel therefore submitted that the hearing (if any) given to the claimant before his alleged dismissal could not have been fair without the claimant being afforded an opportunity of confronting the Managing director of Bob-Mat, the customer on whose behalf the letter of complaint Exhibit CC2, was purportedly written. In Exhibit CC6, the same Bob-Mat stated in paragraph 2 that he was “surprised to hear that (the Claimant) has been sacked…” He goes on to say in paragraph 3 that: “It was when one Emmanuel Akeju in Port Harcourt started calling me about the Guarantee that I felt that something was wrong but, I consistently told him that: - The letter from INTEGRITY LAW UNION did not emanate from me, the letter was sent without my consent, and your bank did not investigate to know its authenticity. As it is my right as the account holder to engage a lawyer, if I feel that (sic) my right has been infringed upon. - The bank Manager, Mr. George Ozoani did not make any monetary request, or receive any Three Million naira from me or Three Million naira cheque from me. - The purported letter sent to the Bank was sent without my consent. - When I came to your head office to complain about the debiting of my account by the Rumuomasi branch of your bank, I mentioned it that I did not write any such letter to the bank. So, it was a big surprise that I heard that the letter come from me.” The position of Bob-Mat as contained in Exhibit CC6 clearly shows that he would have been willing to appear before the disciplinary committee had he been requested to. The claimant stated in evidence under cross-examination that he did not know that he was entitled to invite Bob-Mat to the disciplinary Committee hearing which, at any rate, had the claimant actually invited Bob-Mat, he would not have been heard by the Committee as the claimant was not allowed to put his case but was shouted down. This is the uncontroverted evidence before this court which the court is enjoined to act upon. Counsel submitted that the fact that Exhibit CC6 post-dates the claimant’s purported dismissal is of no moment as Bob-Mat wrote Exhibit CC6 out of surprise and a sense of indignation. He strongly felt that the claimant had been unjustly treated. Bob-Mat wrote Exhibit CC6 at the earliest opportunity it had after becoming aware of the claimant’s predicament. Exhibit CC6 shows that the position of Bob-Mat had consistently been communicated to the Defendants both at Port Harcourt and the Head office in Lagos before the claimant’s alleged dismissal. Counsel to the Claimant urged the court to note that Bob-Mat repudiated Exhibit CC2 unequivocally and in very strong terms by letter of 14 July, 2010 (Exhibit CC6). It is respectfully submitted that Exhibit CC6 totally removes the grounds upon which the Defendant claims to have dismissed the claimant. Exhibit CC6 makes it clear that Exhibit CC2 was written without the consent of Bob-Mat. It further makes it clear that the claimant never demanded nor received any gratification from Bob-Mat. Counsel submitted that if the Defendant had conducted proper and adequate investigations, it would have come to a different conclusion regarding the claimant’s part in the circumstances of this matter. The Defendant did not conduct proper and adequate investigations. It’s decision to dismiss, and its purported dismissal, of the Claimant was therefore done in a manner severely prejudicial to the Claimant. It did not accord with the requirements of fair hearing. The Defendant stated in paragraph 2 of the letter of dismissal, Exhibit CC3, that “following a further review of your role in the matter and consideration of the disciplinary committee’s report Management has given its directive for your dismissal”. The Claimant was never given or even shown a copy of the said report, neither was he given or even shown a copy of the report of the investigations of the Bank Auditors/Internal Control Unit of the Bank which DW1 mentioned under cross-examination when he was asked if the Defendant investigated the allegations raised in Exhibit CC2. There was certainly no mention of the Claimant being afforded any opportunity of making any representation to that Bank Auditors/Internal Control Unit’s investigation if, indeed, any was carried out. The evidence of DW1 under cross examination is the only time the so-called Bank Auditors/Internal control Unit investigation is mentioned by the Defendant and was never notified to the claimant, who was shut out from whatever investigation that unit conducted. This bank auditors/internal control unit investigation was neither pleaded by the Defendant nor mentioned in the evidence in Chief of DW1 even through it is clear that the Defendant placed a lot of reliance on it. The court was urged to keep in mind that if anybody should be complaining, it is Bob-Mat who is the defendant’s customer and against whose account with the Defendant the purported cheque or cheques for gratification were allegedly drawn. But Exhibit CC6 shows that the reverse is the case and that Bob-Mat was really quite satisfied and happy with the claimant who helped him salvage his contract with NDDC by issuing the confirmation letter, Exhibit CC1, to Riv-Solution. Riv-Solution is not a customer of the Defendant’s and its letter of complaint, Exhibit CC2, ought to have been treated with caution. There is no doubt that Exhibit CC2 greatly influenced the Defendant to dismiss the claimant. The cheques purportedly issued to the complaint were allegedly drawn against Bob-Mat’s account. If there was to have been any loss, therefore, it would have befallen Bob-Mat and not Riv-Solution. Exhibit CC1 provided that “….19 days from the day a certificate of satisfactory completion of the project is issued by NDDC…” Riv-Solution would be paid from the account of Bob-Mat, the cheques which Bob-Mat had already made out in favour of Riv-Solution. It was submitted by counsel to the claimant that what was envisaged by Exhibit CC1 was that payment was to be made to Riv-Solution within 90 days of the Certification of completion being issued by NDDC. But Riv-Solution demanded immediate payment and wrote Exhibit CC2 in an attempt to arm-twist and blackmail the claimant and the Defendant into paying. This letter ought to have been treated with ignominy but the Defendant acted on it and dismissed the claimant, without verifying the genuineness or otherwise of the allegations raised therein. The only feasible explanation, counsel urged, is to be found in the claimant’s testimony where he stated (in paragraph 20 of his Deposition) that his dismissal was done, inter alia, “..to meet up with the 40% personnel weight shedding recommended by the acquiring bank.” And the court is urged to so hold as this evidence is uncontroverted. As is evident in the very title of this suit, FinBank Plc was acquired by First City Monument Bank during a banking sector re-structuring which took place in Nigeria at about the time the transaction in this matter occurred. The court is urged to take judicial notice of this notorious fact. We place reliance on Section 124 of the Evidence Act 2011 (HB 214) which empowers the court so to do. At any rate, both parties are agreed as to the fact of FinBank Plc’s acquisition by First City Monument Bank Plc and therefore its change of name to the latter. Counsel to the Claimant submitted that the Defendant denied the claimant fair hearing in the circumstances of this matter. The test of fair hearing is the impression of the reasonable man who observes the dealings between the parties. See: MPAMA vs. FIRST BANK OF NIGERIA PLC (2013) 1 MJSC (Pt. 2) 186 at 208-209 paras. E – A where His Lordship Alagoa, JSC cited with approval the statement of the law in this regard by Karibi-Whyte, JSC in ROBERT OKAFOR & ORS vs. A.G. & COMMISSIONER FOR JUSTICE & ORS (1991) 6 NWLR (Pt. 200) 659, that the test to be applied is that of the reasonable man who observes the hearing and “….whether from his observation justice has been done in the case”. In observing the Defendant’s treatment of the Claimant, the question that arises is whether it can be said that the Defendant’s purported dismissal of the Claimant was fair and in accord with the dictates of natural justice? This Counsel answered in the negative, and urged the court to so hold. What is more, even Riv-Solution who, from all indications, had instigated Exhibit CC2, was not invited to substantiate the allegations contained therein especially in view of the fact that Bob-Mat had repudiated Exhibit CC2 and, more particularly, as the Defendant had failed to report the matter to the police for proper investigation. To the Claimant therefore, his dismissal on the circumstances set out above, was wrongful for failing to accord with the requirements of natural justice. It is also instructive to note that the so-called reports of both the Bank Auditors/Internal Control Unit and the Management Disciplinary Committee were not produced in court nor put into evidence for the court to see and form an opinion as to the probative value of same since they greatly influenced the Defendant’s conduct in dismissing the claimant and the defendant harped on them. Counsel urged the court to invoke Section 167 (d) of the Evidence Act 2011 (HB 214) and to hold that those reports, if they had been produced in court, would have been unfavourable to the Defendant. The reasons given by the Defendant for dismissing the Claimant in the letter of dismissal, Exhibit CC3, are that the claimant was being dismissed for… “Issuing a Payment Guarantee to a Subcontractor in return for N3million gratification at 133 Olu Obasanjo Road Branch of the Bank in Port Harcourt, your appearance before the Management Disciplinary Committee in respect of same”. Counsel pointed out that there was no real appearance before the Management Disciplinary committee. The claimant was not allowed to put his own side of the case and the subsequent report of that committee was never made available to him and that is the basis for his purported dismissal. In Exhibit CC6 Bob-Mat categorically states that “The Branch Manager, Mr. George Ozoani did not make any monetary request, or receive any three Million Naira from me or three million naira cheque from me”. Where then is the gratification” for which the Claimant was purportedly dismissed? Counsel submitted that such did not exist. Counsel urged the court to hold that Exhibit DD1 was an afterthought. The claimant stated in his testimony that he was not aware of Exhibit DD1 and that he did not receive it. He stated that if it was delivered at all, it might have been delivered to his secretary. But he doubted it. In its pleadings and evidence the Defendant endeavoured strenuously to convince the court that the claimant acted without authority when he issued the letter of confirmation (Exhibit CC1) to Riv-Solution by signing it alone. DW1 stated in answer to a question by the court that it would have made a difference if Exhibit CC1 had been signed by more than one person. He failed to say in what way it would have made any difference if at all. The claimant maintains that he did not have to consult with anyone before issuing Exhibit CC1, especially since there was already in existence an Advance Payment Guarantee in respect of the project, issued by the Defendant which the claimant facilitated. The Defendant who asserts that the claimant needed to obtain approval before issuing Exhibit CC1 did not put even scintilla of evidence before the court to ground that assertion except the bare averments of DW1 which are controverted by the evidence of CW1. Counsel urged that he who asserts must prove. See Section 131(1) and 136(1) of the Evidence Act 2011 (HB 214). The contract between the parties is contained in the letter of Offer of Employment (Exhibit CC7) and the Defendant People Management Manual (Exhibit CC4). Counsel urged the court to note that the claimant was employed by FINBANK PLC. when it was still called FIRST INLAND BANK PLC. The Bank used the two names interchangeably and later settled for FINBANK PLC simpliciter before being acquired by FIRST CITY MONUMENT BANK PLC which name it now bears. He also urged the court to note that the fact of the claimant’s employment by the former FIRST INLAND BANK PLC is not in dispute. In fact, Exhibit CC7 (the letter of offer of employment) is so headed. The claimant’s employment was confirmed on the letter-headed paper of FINBANK PLC (Exhibit CC8) on February 1, 2010. And by Exhibit CC9, dated January 11th 2010, a new salary structure was communicated to the claimant by the Defendant as FINBANK PLC. The court’s attention was further drawn to the fact that while Exhibit CC9 is headed “FINBANK”, the bank further described itself fully as “FIRST INLAND BANK PLC” at the bottom, right-hand-side of the document. The impression is that the bank used both names. At any rate, the company registration number (RC.No) of the bank appears on all the documents as RC:112876. FIRST INLAND BANK PLC. and FINBANK PLC is one and the same person. This fact is a notorious one of which we urge the court to take judicial notice. The Defendant was and is a bank of repute which has nationwide spread and whose name or various names at various times have been well known and within public knowledge. The identity of the defendant is not in doubt. On this point, counsel relied on Section 124 of the Evidence Act 2011, which empowers the court to take judicial notice of the fact of the Defendant’s changes in name. Counsel to the Claimant also referred the court to the evidence of DW1 to the effect that the difference in the Defendant’s name as reflected on Exhibits CC4 and DD2 was due to the Defendant’s “name-change”. It is not in doubt as to who employed the claimant in June, 2008 and which employment the claimant remained in until the issues arose which led to this case. It is also not in doubt as to who purported to dismiss him in July, 2010; the name changes notwithstanding. The fact of the said name-change being notorious and in the public domain is borne out by paragraph 1 of Exhibit CC6. In the said paragraph of Exhibit CC6, Bob-Mat said, inter alia “…I have been a long standing customer of your bank since when it was Inland Bank, to First Atlantic Bank to First Inland bank and now FinBank”. Counsel submitted that parties are bound by agreements to which they set their hands, and the court is enjoined not to look outside the document containing the terms of the contract of employment in deciding the right and obligation of the parties: WESTERN NIGERIA DEVELOPMENT CORPORATION vs. ABIMBOLA (1966) A.N.L.R. 150; IDONIBOYE-OBU vs. NNPC (2003) 4 MJSC 131 at 150 paras. D-E; IFETA vs. SHELL PET. DEV. CO. LTD. (2003) 7 M.J.S.C. 121. In IFETA'S case his Lordship Mahmud Mohammed JSC put it this way at page 133 paras. F-G; “I need to emphasize the bindingness of the terms of the contract of service between the parties. There is no doubt that the parties’ freedom of contract carries with it the inevitable implication of sanctity of their contracts. This means that if any question should arise with respect to the contract, the terms in any documents which constitute the contract are, invariably, the guide to its interpretation. On this premise, the material question is; what did the parties in the instant case agree with respect to the termination of the contract of service”? Counsel drew the court’s attention to Exhibit CC4 at page 29. Under Guidelines of this portion of the document which deals with Discipline and Grievance Procedure it states: “The Bank’s management shall observe the following guidelines in implementing disciplinary action: (i) All disciplinary action must protect the safety of an employee and ensure fair treatment. (ii) All avenues/channels will be exhausted in all cases before a decision is taken”. Counsel submitted that the defendant’s treatment of the claimant falls short of the provision of the guidelines. The Defendant certainly did not protect the claimant nor did it give him fair treatment. The Defendant cannot claim to have been fair to the claimant in view of claimant’s argument thus far, but more particularly, having regard to paragraph 3 of the section headed Disciplinary Procedure/Measures which provides that “where the matter is grave enough, the offending staff shall be referred to the Disciplinary Committee (after a thorough investigation into the matter) for appropriate sanction. Where the matter can be summarily dealt with, People Management will adopt the appropriate sanction, in line with the Sanctions Grid.” The Sanctions Grid provides under item no. 23 of the Grid for “Advise to Resign” as punishment in a situation where an employee signs a document committing the bank to a financial obligation without authorized approval. This is the infraction of which the claimant was accused. At worst, he should have been invited to resign in accordance with the agreement between the parties. To the Counsel, the claimant did not even commit the bank to any financial obligation at all over and beyond the obligation which the bank had already assumed by virtue of the APG which it gave to NDDC. The court was urged to look carefully at the contents of Exhibit CC1 (The Payment Guarantee). It is clear that what the claimant did was to confirm to Riv-Solution the existence of the earlier APG and then to affirm to Riv-Solution that the Bank will “….unfailingly effect payment from the said account”. The “said account” referred to the account of Bob-Mat. The Bank incurred no financial obligation whatsoever. It is in evidence that Bob-Mat had already made out cheques in favour of Riv-Solution for this payment. What the claimant simply did was to assure Riv-Solution that those cheques would be honoured. Nothing more than that. The Bank incurred no financial obligation by Exhibit CC1 at all. If anything, the Defendant gained immensely from this transaction, firstly, by salvaging a customer’s project for which the bank was already beholden to NDDC by virtue of the APG issued to it and, secondly, the bank collected all its fees and charges when the transaction pulled through directly as a result of the claimant’s efforts. Counsel urged the court to hold that the Defendant’s purported dismissal of the claimant was wrongful also for failing to comply with the contract between the parties and for failing to accord with the dictates of natural justice; for want of fair hearing. The Defendant’s allegation of gross abuse of office against the claimant has not been proved. The defendant cannot therefore dismiss the claimant for gross abuse of office which it cannot justify or prove: AJAYI vs. TEXACO NIG. LTD. (1987) 3 NWLR (Pt. 62) p. 577. In arguing ISSUE TWO (whether the Claimant is not entitled to the reliefs he seeks), it is the submission of learned counsel that the Claimant is entitled to the reliefs he claims. When a term of the contract is breached by the employer’s dismissal or termination can be found to be wrongful. Procedural requirements stipulated for termination of employment must be followed; otherwise termination would be invalid, wrongful and in breach of contract. Ineffectual or invalid termination is, in effect, no termination or dismissal at all: GATEWAY BANK PLC. v. ABOSEDE (2001) FWLR (Pt. 79) 1316 @ 1333-1334; TEZACO NIGERIA PLC. V. KEHINDE (2003) FWLR (Pt. 94) 143 @ 160. The Claimant is entitled, upon the Defendant’s breach of the contract, to recover for the loss he has sustained by reason of the breach: ELECTRICITY CORPORATION OF NIG. vs. GEORGE NICOL (1968) ANLR 199; WESTERN NIG. DEVELOPMENT CORPORATION vs. JIMOH ABIMBOLA (1966) ANLR 15. The Claimant is therefore entitled to the reliefs he seeks as they flow from the breach by the Defendant of the contract of employment between the parties. See the Supreme Court case of KAYDEE Ventures Ltd. vs. Hon. Minister of FCT (2010) 1-2 M.J.S.C. p. 129 @ Para C where His Lordship Muhammed JSC said “Where there is a breach of contract of fundamental nature, such as nature, the party suffered as a result thereof deserves to go home fully compensated. Sections 14 & 15 of the National Industrial Court Act 2006 enjoins the Honourable Court to apply the rules of equity where there is any conflict or variance and to grant all such remedies so that as far as possible all matters in dispute between the parties may be completely and finally determined. Counsel submitted that these sections empower the court to do substantial justice to the issues between the parties and to place less emphasis on technicalities. The defendant’s assertion that the Claimant was dismissed for gross abuse of Office and receiving of gratification has not been proved. It follows therefore that the Claimant’s Claim of wrongful dismissal succeeds. Counsel urged the court to so hold, and consequently grant the Claimant all the reliefs he seeks. Having carefully considered the processes filed in this suit, the evidence adduced and the submissions of counsels in their written addresses, I have identified two (2) issues for determination in this suit:- 1. Whether the dismissal of the claimant was wrongful; and 2. Whether the claimant is entitled to the monetary claims sought in this suit. ISSUE 1: By a letter dated July 8, 2010, that is Exhibit CC3, the defendant dismissed the claimant from its employment. The dismissal letter reads in part as follows- “We refer to the case of issuing payment guarantee to a sub-contractor in return for N3million gratifications at 133, Olu Obasanjo Branch of the bank in Portharcourt and your appearance before the Management Disciplinary Committee in respect of same. Following a further review of your role in the matter and consideration of the disciplinary committee’s report, management has given its directive for your dismissal. Consequently, you are hereby dismissed from the bank’s service immediately…” Arising from the above letter, the claimant has now sued, contending that his dismissal by the defendant was wrongful. He consequently seeks, as per his reliefs (a) and (b) on the Complaint, declarations to the effect that his dismissal was wrongful and not in consonance with the condition of service. It is the claimant’s case that before the date of the dismissal, he was an employee of the defendant. The claimant pleaded that he was employed by the defendant in July 2008 as deputy manager and he was later made a branch manager. These facts were admitted by the defendant. There is therefore no dispute that the claimant was an employee of the defendant and was a branch manager at the time of his dismissal. It is the claimant’s case that the dispute leading to his dismissal started in 2009. NDDC awarded a contract to Bob-Mat Nig. Ltd, a customer of the defendant at the claimant’s branch and whose Managing Director is Bob Emesobi. For this contract, the defendant bank issued an Advance Payment Guarantee (APG) to NDDC in respect of the contract. Later on, when the said Bob-Mat could not execute the contract, it subcontracted it to Riv-Solution Dev. Co. Ltd whose Managing Director is Chief Thompson Emeka Amadi, to finish the contract. The subcontract sum was N41million and the MD of Bob-Mat issued cheques totaling N41million to the MD of Riv-Solution, but Riv-Solution requested for a guarantee from the defendant bank, being the bankers of Bob-Mat. It was at this point that Bob Emesobi introduced Chief Amadi to the claimant. The claimant contended that he explained to them that an APG has already been given by the defendant on the same contract and as such another APG cannot be given but Chief Amadi insisted on being given a guarantee by Bob-Mat’s banker, the defendant. Because of the insistence, the claimant agreed to give a confirmation letter to Riv-Solution confirming the APG already issued by the defendant on the contract. The said letter is Exhibit CC1 on record. Trouble started when a letter, Exhibit CC2, was written to the defendant by Integrity Law Union on behalf of the two contractors alleging, among others, threat to their lives by the claimant and that the claimant requested for gratification of N3,000,000.00 from the contractors to issue Exhibit CC1. The claimant averred that the defendant, upon receiving the complaint in Exhibit CC2, issued queries to the claimant and then he was dismissed by the defendant by Exhibit CC3. It is the claimants contention that he was not given fair hearing before his dismissal neither did the offence he was alleged to have committed attract dismissal. For this reason, the claimant contends that his dismissal was done in bad faith and he therefore claims a declaration that his dismissal was wrongful. In defence of the claims of the claimant, evidence adduced by the defendant show that in January 2010, the defendant received a complaint in Exhibit CC2 against the claimant wherein allegations of threat and obtaining gratification was made against the claimant by the MDs of Bob Mat and Riv-solution through their solicitor, Integrity Law Union. The defendant contends that it investigated the allegations and found that the claimant fraudulently issued a 2nd APG on the NDDC contract upon demand for N5,000,000 gratification without the knowledge and approval of the defendant. During the investigation, the claimant could not give any convincing reason why he issued Exhibit CC1 written and signed by him contrary to known banking practice. It was also found that the claimant failed to neither inform the defendant that the contract has been subcontracted nor the fact that there was Exhibit DD1 from Bob Mat to stop payment of the cheques issued to the claimant in payment of the gratification sum. It is the defendant’s evidence that the defendant investigated the allegations, gave the claimant an opportunity to present his case, and he was invited to face a disciplinary committee. The committee found the claimant’s conduct as gross abuse of his office and he was consequently dismissed by the defendant vide exhibit CC3. The defendant, on these facts, stated that the claimant’s dismissal was not wrongful. The first point I must make here is that the relationship between the parties in this case is that of master and servant. To determine whether the dismissal of the claimant was proper or wrongful, the terms of the employment of the claimant must be examined to see whether his dismissal was in accordance with the conditions of service. The evidence of the parties show that they both rely on the condition of service to support their positions and the counsels to both parties in this case have also agreed, in their respective written addresses, that it is the condition of service of the defendant that stipulates the procedure for dismissal of the employees of the defendant. Therefore, where there is a condition of service regulating the rights of the parties in a contract of service, it is the terms therein that should be looked into to determine whether the termination or dismissal was wrongful or not. See NEPA vs. ENYONG (2003) FWLR (Pt. 175) 452 at 468 In proving the condition of service regulating the claimant’s employment with the defendant, two separate conditions of service were tendered in this case. While the claimant tendered Exhibit CC4, the defendant tendered Exhibit DD2. Exhibit CC4 is headed “FIRST INLAND BANK PLC” and Exhibit DD2 is headed “FINBANK PLC”. The defendant’s counsel has argued at paragraphs 4.6 to 4.15 of his written address that the claimant has failed to put the conditions of his service in evidence, as Exhibit CC4 was not the operative condition of service as at the time of the claimant’s employment and his dismissal. According to the defendant’s counsel, Exhibit CC4 has no probative value as the claimant has not pleaded any fact to support the exhibit. He submitted on this point that the appropriate condition of service of the claimant is Exhibit DD2. On the other hand, the claimant’s counsel has argued in paragraphs 3.1.34 to 3.1.40 that the terms of the claimant’s employment are contained in his employment letter and Exhibit CC4. To counsel, First Inland Bank and Finbank are same bank but only changed name before its final acquisition by the instant defendant. It is counsel’s submission that the difference in the names in Exhibits CC4 and DD2 is immaterial as they emanated from the same entity. I do not think I should expend energy on this issue. What is clear here, as pleaded by the claimant in paragraph 1 of his amended statement of fact, is that the claimant was employed by First Inland Bank which later changed name to Finbank. Exhibit CC4 and DD2 are therefore from the same body. What is more, I have looked at both documents and I have seen that the contents are the same. The defendant’s counsel has admitted to this fact in paragraph 4.16 of his address. That being the case, since I cannot use both documents simultaneously in this judgment, I shall make use of Exhibit DD2, it being the operative condition of service of the defendant at the time of the claimant’s dismissal. The claimant’s counsel has contended in his address that the claimant has not led any evidence on the content of the condition of service allegedly breached by the defendant in his dismissal and this court cannot make any independent examination into the document. He cited the case of Gov, Kwara State vs. Eyitayo. With due respect to the defendant’s counsel, since the condition of service is an Exhibit before the court, I am permitted to examine it. The purpose of this court at all times is to do justice between litigants. To achieve that purpose, I can examine any document placed before me. Even if the said documents were not tendered, and admitted in evidence, for the simple fact that they were frontloaded, they are deemed admitted on the authority of Kurt Severinsen vs. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 at 454, and especially, going by the provisions of Order 19 Rule 9(ii) of the NIC Rules 2007. It has been variously held in Akinola vs. VC, UniIlorin [2004] 11 NWLR (Pt. 885) 616; Agbaisi vs. Ebikerefe [1997] 4 NWLR (Pt. 502) 630 and Agbahomoro vs. Edieyegbe [1999] 3 NWLR (Pt. 594) 170 that a court is entitled to look at a document in its file while writing its judgment or ruling, even if the said document was not tendered and admitted as an exhibit at the trial. In view of the foregoing, coupled with the provisions of Section 15 and Section 12 (2) (b) of the NIC Act 2006, it is my holding that the court is entitled to make an independent examination into the content of the Conditions of Service. Besides, the claimant in paragraph 26 of his amended statement of fact and in paragraph 15 of his deposition has made reference to the content of the condition of service when he contended that by virtue of the condition of service, the offences he allegedly committed only attracts “ask to resign” and not dismissal. This fact having been put before this court, the court is expected to examine the condition of service under reference in order to determine the veracity of the claimant’s contention. The evidence adduced by the parties in this case as well as Exhibit CC2 show that the complaints against the claimant which culminated in the dismissal of the claimant are receiving N3million gratification and threat. The evidence adduced by the defendant showed that during investigation of the complaint in Exhibit CC2, the defendant found that the claimant demanded for gratification on the basis of which he issued a 2nd guarantee (Exhibit CC1) on the NDDC contract without the knowledge and approval of the defendant. Exhibit CC3 dismissing the claimant shows that the claimant was dismissed for the “case of issuing payment guarantee to a sub-contractor in return for N3million gratification”. From these facts, particularly in Exhibit CC3, I am able to identify 2 distinct allegations of misconduct against the claimant for which he was dismissed. They are allegations of issuing Exhibit CC1 without approval from the defendant and obtaining gratification. The claimant’s case is that these misconducts only attract the punishment of “ask to resign” and not dismissal as has been done to him by the defendant. The question at this point is whether by the contract of service, these misconducts are one of which the defendant is permitted to dismiss the claimant. Page 29 of Exhibit DD2 contains disciplinary sanctions the defendant may impose. At the sanctions grid, key 7 is “ask to resign” while key 9 is “dismissal”. At pages 30 and 31, various misconducts and their sanctions were listed. Item 23 at page 31 of Exhibit DD2 contain the misconduct of “signing document committing bank to financial obligation without authorized approval” and the sanction grid is 7, that is: “ask to resign”. I have read through the acts constituting misconducts at page 30 and 31 of Exhibit DD2, but I cannot find where the word “gratification” is listed as misconduct. The term “gratification” is defined in Black’s Law Dictionary, 8th Edition as “A voluntarily given reward or recompense for a service or benefit”. From this definition, the allegation of gratification is analogous to the misconduct of “deriving benefits in the course of his/her official duties from acts likely to result in conflict of interest between his personal interest and that of the bank” contained as item 16 at page 30 of Exhibit DD2. The sanction for this misconduct is also “ask to resign” It is thus clear that the punishment the defendant is permitted to impose on the claimant for the allegations against him, as provided in the condition of service of the defendant, is to be asked to resign. The misconducts do not attract dismissal. It is therefore wrong for the defendant to dismiss the claimant when its condition of service clearly did stipulate the punishment for the type of misconduct alleged against the claimant. It should be reiterated that condition of service is a contract between the parties and the terms therein are binding on the parties thereto. See UNITY BANK vs. ABIOLA (2009) All FWLR (Pt. 452) 1082; EVANS BROTHERS (NIG) PUBLISHERS vs. FALAIYE (2003) FWLR (Pt. 152) 15; NEPA vs. ENYONG (SUPRA), and it is the duty of the court to apply the terms, conditions and provision of the contract between the parties. See IKHALE vs. FAAN (2003) FWLR (Pt. 181) 1726 at 1742. By the contract of service between the parties, I find that the dismissal of the claimant was not in accordance with the defendant’s condition of service. In Exhibit CC3, the defendant has given reasons for dismissing the claimant. The reason is ‘issuing payment guarantee to a sub-contractor in return for N3million gratifications”. It is settled law that an employer is not obligated to give reason for terminating or dismissing his employee from service but where a reason is given for the dismissal, the reason must be proved to justify the dismissal. See OLAREWAJU vs. AFRIBANK (2001) FWLR (Pt. 72) 2008 at 2017. The question that arises at this point is: “Has the defendant been able to justify the dismissal of the claimant in this case?” DW1 testified that during investigation, it was found that the claimant issued and signed Exhibit CC1 without the knowledge or approval of the defendant neither did he inform the defendant that the contract, for which an APG has earlier been issued, has been subcontracted. According to DW1, the claimant could not give any convincing reason why he issued a payment guarantee written and signed by him alone contrary to known banking practice which conduct is a gross abuse of his office. In cross examination, DW1 stated that the defendant believed the claimant has violated the condition of service and he deserved to be dismissed. The claimant has however contended that Exhibit CC1 is not a payment guarantee but a mere confirmation letter for which he need no approval of the defendant to issue. In essence, I gather from the testimony of the Claimant that if Exhibit CC1 is a payment guarantee, he needed approval to issue it but if it is a confirmation letter alone, he needed no approval. What is clear from the evidence before the court is that the claimant issued Exhibit CC1 without the knowledge and approval of defendant. The claimant admitted under cross examination that he wrote Exhibit CC1 all by himself and that the defendant was not aware he made Exhibit CC1. Now, is Exhibit CC1 a payment guarantee as alleged by the defendant or a confirmation letter as alleged by the claimant. The exhibit, which is addressed to The Managing Director, Riv-Solution Ltd and headed “PAYMENT GUARANTEE FOR THE SUM OF FORTY ONE MILLION NAIRA ONLY”, reads- “We write to confirm our guarantee to pay to your good selves the sum of N41 million (forty one million naira only) from the account of Bob-Mat Nig Ltd upon satisfactory completion of the one kilometer road project subcontracted to you by our client, Bob Mat Nig. Ltd. This guarantee stems from the advance payment guarantee (APG) already issued by the bank to NDDC in respect of the contract for the construction of Umuoforji-okomini Road, Obehia-Asa awarded to Bob-Mat Nig. Ltd. We hereby state that 90 days from the day a certificate of satisfactory completion of the project is issued by NDDC that the bank will unfailingly effect payment from the said account” The letter was signed by the claimant alone in his capacity as the branch manager of defendant but clearly written on behalf of the defendant. The exhibit is on the letter head of the defendant and it is clear from the content set out above that it is actually a payment guarantee where the claimant made the defendant guarantee to “unfailingly effect payment” of the sum of N41million to Riv-Solution from the account of Bob-Mat. DW1 under cross examination stated that the claimant is not authorized to write Exhibit CC1 and he was dismissed because he wrote the exhibit committing the defendant to huge financial obligation without authorization to do so. From these facts, it is clear to me that Exhibit CC1 is a payment guarantee which the claimant had no approval to make. The exhibit also committed the defendant to financial obligation. Then there is also the issue of the claimant obtaining gratification of N3million to issue the letter. In support of these allegation is Exhibit DD1, dated 13th January 2010, written by Bob-Mat to the defendant bank requesting that payment of 2 cheques of N1.5million each given to the claimant be stopped “for his unfulfillment of our agreed understanding”. In his testimony, DW1 stated that, following the complaint in Exhibit CC2, the defendant investigated these allegations and found that the claimant fraudulently issued Exhibit CC1 upon demand for gratification. These were the facts relied on by the defendant to dismiss the claimant. From the facts analysed above, I am satisfied that the defendant only established the misconducts of signing documents without approval and deriving benefits from his official duties for which the punishment is “ask to resign” by virtue of Exhibit DD2. The evidence that have been adduced before this court on the reason for dismissal did not support the dismissal meted out to the claimant. Clearly, the punishment of dismissal imposed on the claimant for the misconducts alleged against him is unwarranted and contrary to what is stipulated in the defendant’s condition of service Exhibit DD2, for that type of misconduct. The defendant cannot impose a higher punishment than what is prescribed for the misconducts. See UDEGBUNAM vs. F.C.D.A (2003) FWLR (Pt. 165) 434 at 444. The defendant has therefore failed to satisfy this court on the dismissal of the claimant and the obvious consequence is that the claimant’s dismissal from his employment was wrongful. The claimant’s dismissal having been found wrongful, I now turn to consider what should be his appropriate remedy. The claimant has sought alternative reliefs of either reinstatement to his former position in his employment or alternatively the defendant be directed to ask him to resign from his employment. In master and servant relationship, as in this case, re-instatement to employment can hardly be made. In master and servant relationship, once an employment is determined, whether validly, wrongly or unlawfully, the relationship has been brought to an end. It was held in IKHALE vs. FAAN ((2003) FWLR (PT 181) 1726 AT 1742, that- “It is the law that in ordinary cases of master and servant, a repudiation of the contract of employment by wrongful dismissal of the servant by the master puts an end to the contract”. Thus, in this case, re-instatement cannot be granted. This is on the principle that specific performance of contract of service cannot be ordered in master and servant engagement. See JIRGBAGH vs. U.B.N PLC (2000) FWLR (Pt. 26) 1790 at 1807. Therefore, the claimant has ceased to be in the employ of the defendant from the date of Exhibit CC3 and his claim for re-instatement cannot be granted. As for the alternative relief for resignation, it is my finding in this judgment that, in view of the condition of service between the parties, to be asked to resign is the punishment for the misconducts alleged against the claimant. The claimant was supposed to be asked to resign in the first place instead of an outright dismissal. Before I conclude this issue, there are some fundamental issues raised by the claimant which deserve brief comments or consideration. First, the claimant, in his pleading and evidence, has contended that he was not given fair hearing before his dismissal. In view of my finding that the claimant’s dismissal was wrongful, the complaint of fair hearing is no longer an issue and I need not dissipate energy on it. Secondly, in paragraphs 22 to 24 of his statement of facts, the claimant has pleaded that allegation of receiving gratification is a serious offence which should have been reported to the police for investigation and prosecution and that the defendant assuming the position of court to try criminal offence is unconstitutional and infringes on the claimant’s right to fair hearing. It was further averred that the defendant is not a court and so cannot sit in judgment over the claimant for criminal charges. The claimant seems to be contending in these averments that since the accusations against him border on criminality, the defendant cannot discipline him unless he was first tried in a court for the criminal offences. This contention no longer has legal support. Being a contract of service or master and servant engagement, the defendant is permitted to discipline the claimant or terminate the employment for any misconduct bordering on criminality without first subjecting the claimant to trial in court. In EZE vs. SPRING BANK (SUPRA) at 1093, the Supreme Court, per Mohammed JSC, held- “It is no longer the law that where an employee commits acts of gross misconduct against his employer which acts also discloses criminal offences under any law, the employer has to wait for the outcome of the prosecution of the employee for such criminal offences before proceeding to discipline the employee under the contract of service”. It is thus trite that once there is a criminal allegation in the act or conduct of an employee, the employer will have power to exercise disciplinary measure on him and not necessarily after his guilt or otherwise is determined in a criminal court. See YUSUF vs. UNION BANK OF NIG. LTD (1996) 6 NWLR (Pt. 457) 632; OLAREWAJU vs. AFRIBANK PLC (SUPRA) at 2025 In conclusion of issue one, I find and hold that the dismissal of the claimant from the employment of the defendant was wrongful and he is entitled to an order directing the defendant to allow him to resign from his employment. This holding will necessarily lead to the question whether the court can make an order directing the defendant to ask the claimant to resign. Since the Claimant is no longer in the service of the defendant as to begin to write a letter of resignation at this stage, in my view, the proper order to make would be to commute the Claimant’s purported dismissal into resignation. The Claimant is therefore deemed to have resigned in accordance with the prescribed sanction grid 7 which is “ask to resign”, and the resignation takes effect from the date of his dismissal on the 8th day of July 2010. I so find and hold. ISSUE TWO The claimant also sought some monetary claims. He claims against the defendant, payment of all his accrued salaries, emoluments and other entitlements which he itemized in relief (e) as follows- i. N10,500,000 being his annual salaries from the date of his dismissal on 8th July 2010 till the date of judgment in this suit, ii. N30,000,000 being his gratuity, iii. N50,000,000 general damages for loss of work and means of livelihood, and iv. 20% interest on the judgment sum from the date of judgment until the sum is liquidated I shall examine each of these claims to determine which one of them the claimant is entitled to. The sum of N10,500,000.00 claimed by the claimant covers his salary from 8th July 2010 to the date of judgment in this suit. The defendant has denied liability for this sum. Notwithstanding the wrongfulness of the claimant’s dismissal, the claimant’s employment has been terminated. In effect, he is no longer in the defendant’s employ as at the date of Exhibit CC3. He can therefore not treat the employment as subsisting and claim for salary for period he was no longer in the service of the defendant. See SPRING BANK vs. BABATUNDE (2012) All FWLR (Pt. 609) 1191 at 1205. The claimant’s claim for salary from the date of Exhibit CC3 to date has no merit and it is hereby dismissed. The claimant claims the sum of N30,000,000.00 as his gratuity. The claimant has led no evidence on this claim. The Claimant has not shown this court how the sum accrued or how he became entitled to it. I have perused Exhibits CC7, CC8 and CC9 but I cannot find anything in their content to support this claim. An employee’s claim for gratuity is a claim that, usually, the court will grant. This was the view in EMCON NIG. LTD. V. BELLO (2012) All FWLR (Pt. 619) 1149 at 1167-1168 where it was held that a dismissed employee is nonetheless entitled to be paid his gratuity. In this instant case, I cannot find any proof of the claim to enable me make the order for its payment. I find the claim not proved and it accordingly fails. As for general damages of N50,000,000.00 sought by the claimant, the claim cannot be granted. General damages are not usually awarded in actions between master and servant. It is settled law that an employee cannot be awarded general damages in an action between him and his master. See P.Z & CO. LTD vs. OGEDENGBE (1972) All NLR 206 at 210; PIONEER MILLING CO. LTD. vs. NANSING (2003) FWLR (Pt. 151) 1820 at 1827-1828. Therefore, the claim for general damages also fails. It is clear from the foregoing that all the monetary reliefs sought by the claimant fail. The consideration of the claimant’s claim for interest on the judgment sum becomes unnecessary as there is nothing on which to award interest. The Claimant’s dismissal having been commuted to resignation earlier in this judgment, it is incumbent upon the court make a consequential order, taking into consideration the totality of the evidence and pleadings before the court. I have the discretion under Section 14 of the NIC Act 2006 to make such order or grant any remedy as may be just in order to completely resolve the issue in dispute between the parties. Section 19(d) of the NIC Act dealing with the power of the Court to make certain orders, provides that the Court may and where necessary make any appropriate order, including an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear. The above statutory provisions finds legal support in the recent decision of the apex court in the unreported case of HON CHIGOZIE EZE & 147 OTHERS vs. GOVERNOR OF ABIA STATE & 2 OTHERS SUIT NO SC 209/2010 in a judgment delivered on the 11th day of July 2014 where it held that “Judges are expected at all times to decide according to the justice of the case and what is right, and always lean towards equity instead of strict law”. Referring to Section 22 of the Supreme Court Act, his lordship Bode Rhodes-Vivour JSC in delivering the lead judgment, held that the Apex Court has the unlimited power to do substantial justice in deserving cases. His lordship Onnoghen JSC, concurring with the above reasoning in allowing the appeal, that a mere declaratory order would confer no material benefit, and that that would not amount to justice. A consequential relief is therefore necessary, as it enables the court to do justice between the parties. The court in doing justice to the parties, could therefore grant to a party, a relief that is incidental to the main relief. The Supreme Court in the Chigozie Eze case (Supra), made a consequential order of payment of the appellants’ outstanding salaries simplicita. In consequence, and in the final analysis of this judgment, I hereby order as follows- 1. It is hereby declared that the dismissal of the claimant from the employment of the defendant was wrongful as it was not in accordance with the defendant’s condition of service. 2. The dismissal of the Claimant by the defendant vide Exhibit CC3 is hereby commuted to resignation. The said resignation will have the same effective date of 8th July 2010, the date of dismissal (Exhibit CC3). 3. The defendant is hereby ordered to calculate and pay to the claimant all the sums he is entitled to upon resignation, pursuant to and accruing to him up to the date of his resignation which is 8th July 2010. 4. Cost of N200,000.00 is awarded in favour of the claimant Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge