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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 05, 2014 SUIT No. NICN/PHC/77/2013 Between Gbadebo Samuel - Claimant And Aero Contractors Company Nigeria Ltd - Defendant Representation: K. F. Chinule for the Claimant E. A. Agbelusi for the Defendant JUDGMENT The Claimant filed this action on the 3rd day of June 2013, seeking the following reliefs against the defendant: 1. A declaration that the termination of the appointment of the claimant with the defendant was wrongful. 2. An order directing the defendant to pay the claimant all the accrued salaries, benefits and entitlements pursuant to the wrongful termination of the claimant’s appointment from the date of the alleged termination of the claimant’s employment until judgment is delivered and executed. Along with the writ of summons were an affidavit of verification of endorsement, Statement of Claim, List of witnesses, Witness’s deposition on oath, list of documents and copies of documents to be relied upon at the trial. The Defendant entered appearance on the 23rd September 2013 and filed a Statement of Defence and Counter-Claim for: a. An order of declaration that the Claimant is indebted to the defendant in the sum of N70, 158.15 (Seventy Thousand, One Hundred and Fifty Eight Naira, Fifteen Kobo) only. b. An order directing the Claimant to pay the defendant the sum of N70, 158.15 (Seventy Thousand, One Hundred and Fifty Eight Naira, Fifteen Kobo) only being the Claimant’s indebtedness to the defendant. c. Interest on the sum of N70, 158.15 (Seventy Thousand, One Hundred and Fifty Eight Naira, Fifteen Kobo) only, at the rate of 17% per annum up till judgment and/or earlier settlement and 22% after judgment till final payment. Along with the Statement of Defence and Counter-Claim, the defendant filed its list of witnesses, witness’ statement 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 12th day of November 2013. The Claimant on the 12th of December 2013 filed a Reply to the Defendant’s Statement of Defence. The case proceeded to hearing on the 5th day of February 2014. The parties fielded a witness each. The Claimant testified for himself as CW1, while Mr. Sola Omoniyi, the Accountantat the Finance Department of the defendant testified as DW1. Hearing was concluded on the 12th day of March 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 1st day of April 2014 and the Claimant’s written address was filed on the 23rd day of April 2014. Thereafter, the Defendant filed a Reply on points of Law on the 5th day of May 2014. They adopted their respective written addresses on the 8th day of July 2014. The case of the Claimant is that his temporary appointment was converted to permanent staff as a loader III in April 2002, and later became a Baggage Handler III in May 2006. His employment is covered by terms and conditions contained in the employee handbook which was pleaded and a copy frontloaded. By the Claimant’s pleadings, notice was given to the defendant to produce the said handbook. The Claimant was said to have worked diligently and honestly for the defendant, and never received any query, warning or reprimand from the defendant. Nevertheless, the defendant terminated his appointment on the 13th day of August 2009 without paying the Claimant his entitlements, hence this action seeking the court’s declaration that his termination was wrongful, and an order of court directing the defendant to pay his accrued entitlements which he has calculated to amount to N5,421,960.82 (Five Million, Four Hundred and Twenty One Thousand, Nine Hundred and Sixty Naira, Eighty Two kobo) only. The case of the defendant is that the Claimant was employed by the defendant as a casual loader in 2000 and rose to the position of traffic assistant; and that Claimant’s employment was terminated as a consequence of a general staff verification exercise carried out by the defendant, during which discrepancies were discovered in the record of the Claimant. The defendant raised the following two issues for the determination of the court: 1. Whether or not the parties are bound by the terms and conditions of employment contained in the Claimant’s letter of appointment. 2. Whether the Claimant’s employment was wrongfully terminated by the defendant. In arguing issue 1, Counsel to the defendant submitted that this case falls under the category of common law relationship of master and servant, as it is devoid of any statutory flavour. It should therefore be regulated by the terms and conditions in the offer letter, staff handbook and all other documents freely endorsed by the employer and employee. He submitted that the letter of offer given to the Claimant by the defendant contained clear and ambiguous and indeed specific terms and conditions which can stand independent of any provision provided in the staff handbook or any other document regulating the employment of the Claimant. Having admitted that he read and understood the content of the letter of offer and accepted same by endorsing an enclosed copy which he returned to the defendant, the Claimant is presumed to have known that the conditions in the letter of offer were meant to regulate his employment with the defendant. Citing the case of Union Bank of Nigeria Plc. vs. Emmanuel Aderewaju Soares (2012) 11 NWLR Pt. 1312 Pg. 571 B-C, and submitted that parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous and the only duty of the court is to interpret those clauses written in the contractual document which is the pivot bedrock or foundation of the Claimant’s contract of employment, and upon which the employee must base any incidental case. Referring to the case of Archbishop Olubunmi Okogie & Ors. vs. Mrs. Margaret Epoyun (2010) 11 NWLR (Pt. 1206) Pg. 479, counsel cited the dictum of Alagoa JCA thus: “agreements or contracts are entered into by parties based upon what they intend should govern their transaction. A judge’s duty is to interpret the intentions of the parties as embodied in the document that they intend should govern them with respect to that transaction.” It is Counsel’s submission that from the provisions of Section 83 of the Evidence Act, it is incumbent upon the court to give recognition to the ordinary meaning/interpretation of the content/clauses of the letter of offer (Exhibit CC1) which expressly provided that “the following other terms and conditions will govern your employment”, especially as the Claimant had duly read, agreed and accepted to be bound by the content of the letter of offer, which he tendered as his basis for employment, and during trial, did not dispute the fact that the content of the document were made to regulate his employment. Having therefore taken benefit of the said letter of offer (Exhibit CC1), the Claimant cannot resile therefrom, or claim the non-existence thereof. A. G. Rivers State vs. A. G. Akwa Ibom State (2011) 29 WRN 1 at 161 – 162. To the defendant, the Claimant (CW1) having testified during trial that he read, understood and accepted the terms of the letter of offer, and confirmed that he signed and returned an enclosed copy of the letter (Exhibit CC1) to indicate his acceptance, it goes without saying therefore, that he must be bound by the content thereof. Counsel went further that a document must speak for itself in a situation where the document makes the subject matter of dispute clear. On this he cited the case of Rauf Aregbesola & 2 Ors. vs. Olagunsoye Oyinlola & 2 Ors. (2011) 9 NWLR Pt. 1253 Pg. 582 C-E where Ogunbiyi JCA restated the dictum of Akpabio JCA that “In our law, a document must speak for itself.” In urging the Court to hold that the letter of offer regulated the Claimant’s employment with the defendant and the Claimant is bound by the terms and conditions contained therein, Counsel cited the case of A. G. Ferrerro & Co. Ltd. vs. H. C. (Nig.) Ltd. (2011) 13 NWLR (Pt. 1265) 592 and submitted that parties are bound by the agreement they voluntarily entered into; and that the suit of the Claimant and indeed the totality of his evidence confirms that the letter of offer (Exhibit CC1) is the fulcrum of the relationship between the Claimant and the defendant since the claims of the Claimant are hinged on the rights derived from Exhibit CC1, without which this action may not accrue. In arguing Issue 2, the defendant submitted that is a well-established principle of law that ordinarily, a master is entitled to dismiss his servant from his employment for any reason or for no reason at all, provided the termination is in accordance with the terms and conditions of their contract. Counsel cited WR & PC Ltd. vs. Onwo (1999) 12 NWLR (Pt. 630) 312 and submitted that the motive which impels the master to terminate a contract of employment with his servant is irrelevant. To the defendant, this means that the employer has a prerogative of terminating the employment of an employee in so far as the employee acts within the confines of the terms of employment. Counsel for the defence recalled that DW1testified under cross examination that due to the volume of staff and numerous credentials submitted to the defendant at the point of recruitment, the defendant could not conduct proper investigation to verify the veracity of information and authenticity of certificates presented by applicants for employment, hence the need for a certificate verification exercise of the defendant’s entire staff, to determine the genuineness of their academic and personal information, especially due to the prevalence of fake certificates and credentials in circulation. Certificate verification forms were provided to all staff of the defendant; and they were required to fill in their personal and educational details. Counsel noted that the Claimant’s records were ridden with the following inconsistencies: a. He filled 30th of September 1971 as his date of birth in the Staff Certificate verification form. b. He filled 30th September 1969 in his employment form. c. He filled 24th September 1965 in his casual information form. Counsel further recalled that the Claimant stated under cross-examination that he was born on 30th September 1971 but he filled 30th September 1969 in his employment form and 24th September 1965 in his casual information form because he does not know his actual date of birth. Interestingly, counsel stated, the Claimant admitted to having full knowledge that there were inconsistencies in his records with the defendant, and that he does not know his date of birth but yet went ahead to fill records and sign undertakings on fictitious information. Counsel to the defendant made further submissions under the following subheads: • Staff Certificate Verification Exercise • Notice in lieu • Counter Claim As regards the Staff certificate verification exercise, Counsel submitted that DW1 testified that the defendant carried out a comprehensive certificate verification exercise for its entire staff in 2009. Counsel went further that the Claimant submitted to and participated in the certificate verification exercise by supplying information which he undertook that the defendant could place reliance on when he signed a declaration on the staff certificate verification form that his employment could be terminated in the event that inconsistencies were discovered in his record. Counsel cited the case of Abalogu vs. S.P.D.C Ltd. (2003) 13 NWLR (Pt. 837) Pg. 311 at 333 B-C and submitted that it is trite law that parties are bound by the terms of the agreement they have entered into; and that it is also established that in interpreting the relationship of parties to an agreement which is set out in a document, the court should confine itself to the terms set out in the document. He went on that parties are bound by the terms set out in the staff certificate verification form. Their respective rights and liabilities should therefore be construed in line with the terms and conditions contained in and related to the staff certificate verification form, especially as the Claimant had read, understood and signed an undertaking in the staff certificate verification form. He cited the cases of UBN Ltd. vs. Sax (Nig.) Ltd. (1994) 8 NWLR Part 361 Pg. 150, Evbuomwan vs. Elema (1994) 6 NWLR Part 353 Pg. 638 at 650, and Idoniboye-Obu vs. N.N.P.C. (2003) 2 NWLR Part 805 Pg. 612 and submitted that parties are clearly bound by the terms of agreements signed by them, and new meanings cannot be read into documents which are clear and unambiguous. The Claimant is therefore clearly bound by the terms and content of the staff verification form. Again, having signed a declaration in the staff certificate verification form that his employment could be terminated in the event that inconsistencies were discovered in his records, which fact was admitted under cross examination, Section 123 of the Evidence Act 2011 posits that no further proof is required. In the case of Dr. C. T. Tynozughul vs. Attorney General, Benue state & 2 Ors. (2005) 5 NWLR Part 918 Page 226 at 254, it was held that “where a fact has been admitted in evidence, it is not necessary for the opposing party to prove such admitted fact.” See also Atanze vs. Attah (1999) 3 NWLR (Pt. 596) Pg. 647. As regards Notice in lieu, the defence submitted that the Claimant’s employment was an ordinary contract of employment determinable by notice and the contract provided that either party may terminate it by giving a specified period of notice or payment of salary in lieu of notice; and that it was expressly stated in Exhibit CC1 that his appointment could be terminated by either side giving one month’s notice or salary in lieu of notice. Counsel went on that by the termination letter (Exhibit CC3); the Claimant was duly notified of the termination of his employment and an advice to the Defendant’s finance department for the calculation and payment of his final entitlements (where applicable). It therefore goes without saying, that what is required is for the defendant to show that the finance department carried out the payment instruction. Counsel urged the Court to hold that the Claimant’s employment was validly terminated on the premise that where a contract of employment has been terminated in accordance with its terms, the termination is valid. On Counter Claim, the defendant submitted that all the staff of the defendant took benefit from a staff housing scheme whereby housing allowances are paid upfront at the anniversary of each staff’s employment date. As at the time of termination of the Claimant’s employment, his entitlement was less than the amount outstanding on the housing allowance, thus he could not be paid. DW1 had at the trial tendered the payment schedule which showed a breakdown of the calculation of severance payment due to the claimant and the amount outstanding on the housing scheme. Pay-slips were also tendered to show the sum paid to the Claimant as housing allowance and the total deductions thereon. Counsel submitted that the sum of N70, 158.15 (Seventy Thousand, One Hundred and Fifty Eight Naira, Fifteen Kobo) only remained unpaid by the Claimant, and the defendant is therefore entitled to recover this sum on its counterclaim. He concluded by urging the court to hold that the letter of offer governed the relationship between the parties, that the content of the said letter is clear and unambiguous; and that the Claimant’s claims which remain wholly unsubstantiated and not supported by evidence, amounts to a futile attempt to unilaterally incorporate and force extraneous terms and meaning into the clear and unambiguous terms of the letter of offer and the staff handbook to provide a platform for his claims. He also urged the court to hold that the defendant is entitled to the sum of N70, 158.15 (Seventy Thousand, One Hundred and Fifty Eight Naira, Fifteen Kobo) only being outstanding due from payment of housing allowance to the Claimant. He finally urged the court to discountenance the entire evidence of the Claimant for being speculative, inconsistent, and unsubstantiated and therefore should be dismissed for being unmeritorious and time wasting. He urged the court to enter judgment in favour of the defendant on the basis of its counter-claim. The Claimant’s final written address filed on the 23rd day of April 2014 raised the following issues for determination: 1. Whether the terms and conditions regulating the contract of employment of the Claimant with the defendant was also governed by the employment handbook and whether it was complied with. 2. Whether Exhibit CC1, the basis for the dismissal of the Claimant cannot be interpreted to mean falsification as to his previous employment stricto senso. 3. Whether the Claimant was given fair hearing in his abrupt dismissal. 4. Whether the defendant who pleaded that the Claimant was paid salary in lieu of notice which is a condition precedent vis-à-vis the termination of the Claimant’s appointment has established the sum paid as salary in lieu of notice and date of payment. 5. Whether the defendant who did not cross-examine the Claimant as per the sum claimed or challenged the sums claimed by way of cross-examination whether the Claimant is not entitled to the unchallenged sums claimed. In arguing issue 1, it was the submission of counsel to the Claimant that the defendant in Paragraph 5 of its Statement of defence and during cross examination of DW1, admitted that the employee’s handbook also regulates the terms and conditions of the contract of employment between the Claimant and the Defendant. He cited the case of Confidence Insurance Ltd. vs. Trustee of O.S.C.E. (1999) 2 NWLR (Pt. 591) 373 where it was held that facts admitted need not be proved by evidence. The defendant having admitted that the employee’s handbook also stipulated the terms and conditions of the contract of employment between the claimant and the defendant company, no further proof is required. Under Cross Examination, DW1 stated that the condition of service contained in the employee’s handbook is like an addition to the letter of offer. In other words, the employee handbook goes hand in hand with the letter of offer. To the Claimant, the question is whether these terms and conditions were followed. Counsel submitted that the said terms and conditions, which provided specifically for offences that can lead to termination and disciplinary procedure was not complied with. He said DW1 under cross-examination always evaded questions as to whether the employee’s handbook was complied with. Listed in the employee’s handbook are offences that can lead to termination or disciplinary procedure, at the end of which is written a phrase “these are examples only, and not exhaustive”. This, the Claimant submits, gives the defendant an opportunity to have come under the phrase “these are examples only, and not exhaustive”, rather than excluding the Claimant from the applicability of the handbook as DW1 did under cross-examination when he said that the handbook was not followed because the Claimant does not come under it. It is therefore Claimant’s submission that the defendant having not followed the terms and conditions provided for in the handbook, the termination of the Claimant’s employment is therefore unlawful. Counsel cited the case of Nigeria Deposit Insurance Corporation vs. Obende (2002) FWLR (Pt. 116) 921 at 929 where was held that: “The terms of contract of service is the bedrock upon which an aggrieved employee must found his case. He succeeds or fails upon the terms thereof. Therefore in a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties. In other words, the provision of a written contract of service binds the parties thereto, and that it was outside the province of the learned trial judge to look anywhere for the terms of termination of the contract other than in the contract agreement.” Counsel also cited the case of U.M.T.H.M.B. vs. Dawa (2002) FWLR (Pt. 108) 1402 at 1406 where it was held that: “Where the procedure to be followed is clearly spelt out in the contract of employment or the statute under which the servant was employed, that procedure must be followed and the servant must be given opportunity to defend or answer to the complaints or charges of misconduct against him….” Relying on the above authorities, counsel to the claimant submitted that the defendant breached the terms and conditions contained in the handbook. He therefore urged the court to hold that the ensuing termination of the claimant’s employment was unlawful. Assuming without conceding that the offence of the Claimant does not fall under those covered by the handbook as offences that can lead to termination, counsel raised a question as to why the Claimant’s appointment was terminated when his offence or misconduct was not one that could lead to termination as stipulated in the employee handbook. He submitted that the terms and conditions provided for in the employee handbook was binding on the parties but was not complied with by the defendant. He therefore urged the court to hold that the termination was unlawful, citing U.M.T.H.M.B. vs. Dawa (Supra) where the court held that “parties to a contract of service must confine themselves to the clear terms of the contract because the status of appointment and its determination depends on the terms of the contract between the parties.” In arguing issue 2, whether Exhibit CC1, the basis for the dismissal of the Claimant cannot be interpreted to mean falsification as to his previous employment stricto senso, the Claimant’s counsel stated that the case of the defendant is that the defendant falsified her age, (which did not in any way affect the performance of her job which he was employed to do). The declaration in Exhibit C1 reads thus: “Any falsification of facts about your previous employment and any false claim in relation thereto will affect the validity of your employment with is company, and leave the company free to terminate your appointment.” The question then is, whether by this proviso the claimant is relying on, whether the Claimant breached this provision. Counsel submitted that the said proviso had to do with the Claimant’s previous employment and not the present employment with the defendant, and he urged the court to so hold. Counsel said the case of Momoh vs. C.B.N (2007) 14 NWLR (Pt. 1058) Pg. 511 gave credence to this position when it held thus: “…….However, where there is a written contract of employment, statutory provisions and regulating conditions of service, equity demands that the courts should hold the parties bound by the terms of employment agreement.” He also relied on the case of Archbishop Olubunmi Okogie & Ors. vs. Mrs. Margaret Epoyun (2010) 11 NWLR (Pt. 1206) Pg. 479 where it was held thus: “Agreements or contracts are entered into by parties based upon what they intend should govern their transaction. A judge’s only duty is to interpret the intentions of the parties as embodied in the document that they intend should govern them with respect to that transaction.” Counsel therefore urged the court to hold from the strength of the above authorities that the Claimant neither breached Exhibit CC1 nor the handbook. Rather, it was the defendant that breached the said documents. On issue 3, Counsel to the Claimant submitted that the inalienable right of the Claimant to fair hearing by way of issuance of query, warning or an administrative panel to look into what the defendant called discrepancies/misconduct after the verification exercise was manifestly breached by the defendant. He urged the court to so hold, relying on the case of Momoh vs. C.B.N. (Supra) where it was held thus: “In cases where an employee complains to the court about dismissal from his employment on grounds of misconduct, what he is expected to look out for are: (a) Whether the dismissal was in accordance with the terms of employment, (b) Whether the principles of audi alteram partem which imposes a duty upon the employer to act fairly was observed. And acting fairly in the circumstance entails the employer giving the employee opportunity to explain himself before taking any decision which affects his proprietary right.” The above principle, counsel submitted, was re-affirmed in U.B.N. Plc. vs. Chinyere (2010) 10 NWLR (Pt. 1203) 453 where it was held that: “An employer in adhering to the dictates of fair hearing which is all that is required of it/him, must follow the procedure set down in its regulations or conditions of service on order to properly dismiss an employee against whom misconduct…….is alleged.” On Notice in Lieu, Counsel submitted that the Claimant has proved that by the defendant’s pleadings and oral evidence during cross-examination, no notice or salary in lieu of notice was given to the Claimant. By Exhibit CC4 (termination letter), the Claimant was required to return all company’s property in his possession before his entitlement can be paid to him. It is therefore impossible for the defendant to have paid the Claimant his entitlements when he was still in possession of the company’s property (his identity card). Counsel urged the court to hold that the defendant merely issued a cheque which was never lodged in the bank or even honoured by the bank. In arguing Issues 4 and 5 together, Counsel stated that paragraph 20 of the statement of defence merely pleaded that the defendant offered to pay the Claimant salary in lieu of notice, but did not plead any specific sum that was paid as salary in lieu of notice nor was any particular date pleaded when it was paid. He therefore submitted that the Claimant’s strong position in paragraph 7 of his statement of claim that no notice was ever issued was ever issued to him amounts to non-compliance with the condition precedent to his termination. Parties are bound by their pleadings, and evidence which is at variance with the averments in pleadings goes to no issue. Citing the case of Onamade vs. A.C.B. Ltd. (1997) 1 NWLR (Pt. 480) 123 at 145, counsel urged the court to hold that the defendant failed to pay the Claimant salary in lieu of notice which is a condition precedent before terminating the Claimant’s employment. Counsel submitted further that the defendant never challenged the sums claimed by the Claimant, both in their statement of defence, their depositions, and even under cross-examination. In law, when evidence is unchallenged, the court ought to accept such evidence in proof of the issue in contest. In support of this point, counsel cited the case of Folorunsho & Anor vs. Shaloub (1994) 3 NWLR (Pt. 333) Pg. 413 at 433. Counsel concluded by relying on the case of C.B.N. vs. Dinneh (2010) 17 NWLR (Pt. 1221) pg. 125 where it was held thus: “An employment can only be said to have been wrongfully terminated if it was done contrary to the conditions governing the particular contract of service or in a manner not contemplated by the stipulations in the conditions of service.” To the claimant, from the totality of pleadings and evidence adduced, (a) There was no misconduct or discrepancies in the documents submitted to the defendant as his qualification for the job, (b) There was no breach whatsoever in the terms and conditions provided both by the letter of appointment and the employee’s handbook, (c) The defendant acted outside the terms and conditions provided for in both the letter of appointment and the employee’s handbook, and thus breached the terms and conditions contained therein, (d) The defendant did not give the claimant notice or salary in lieu of notice. He therefore urged the court to grant the Claimant’s reliefs and hold that the termination of his employment was unlawful. Counsel urged the court to discountenance the counter-claim of the defendant as it is fallacious, oppressive, and an afterthought calculated to oppress the Claimant. The defendant’s reply on points of law filed on the 5th day of May 2014 responded serially to the issues raised in the Claimant’s written address. On issue 1, Whether the terms and conditions regulating the contract of employment of the Claimant with the defendant was also governed by the employment handbook and whether it was complied with, it was the submission of counsel to the defendant that it has never been in dispute that the terms and conditions contained in the employee handbook governed the employment of the Claimant. DW1 testified that “the employee’s handbook also regulates the terms and conditions of employment because the offer letter could not contain all the terms and conditions made to regulate the employment.” To the defendant, what is in issue is whether the express provision contained in the offer letter (Exhibit CC1) was eroded or superseded by the provisions of the employees’ handbook. This counsel answered in the negative. The employee handbook was not made to obliterate the express provision of the offer letter, but rather to complement it. DW1 confirmed this when he stated so cross-examination. On the validity of the letter of offer, the defendant’s submission is to the effect that the employees’ handbook was not made to supersede or erode the express provisions of the offer letter which was freely endorsed by the Claimant. In Cargill Ventures Ltd. vs. Coastal Services (Nig.) Ltd. (2012) 9 NWLR (Pt. 1304) 81, the Court of Appeal stated that “Courts of law do not make contracts for parties. For there to be a binding contract, there must be consensus ad idem as contractual documents and agreements must be interpreted commercially with a view to giving effect to the intent of the parties.” In this wise, where parties have reduced their agreement into writing, subject to some exceptions, oral evidence will not be allowed to contradict or alter the contents of the document. Counsel therefore submitted that in the absence of any document between the parties tendered by the Claimant repudiating the terms and conditions provided in the offer letter, the provisions of the offer letter must be held to be binding on parties. He urged the court to so hold. On whether Exhibit CC1, the basis for the dismissal of the Claimant cannot be interpreted to mean falsification as to his previous employment stricto senso, the defendant submitted that oral testimony, no matter how beautifully presented cannot take the place of pleadings, and the court cannot allow parties to import facts which are not before the court in the determination of a suit. The defendant neither stated in its pleadings nor in the evidence of DW1 that the termination of the Claimant’s employment was based on Exhibit CC1. Indeed under cross-examination, DW1 said that “the defendant’s management took the decision to terminate the Claimant’s employment after he signed a declaration in his employment form that his employment could be terminated in the event of inconsistencies in his records.” The claimant’s employment was therefore terminated after inconsistencies were discovered in his records, a fact which the claimant did not deny knowledge of. He went further that it is clear from the evidence before the court that the claimant falsified documents to secure employment with the defendant. By Mr. P. C. Uzondu vs. Union Bank of Nigeria Plc. (2009) 5 NWLR (Pt. 1133) Pg. 13, it is not compulsory for an employer to ensure prosecution of an employee for the commission of a crime before dismissing him, particularly where the employee admits to the crime. In other words, where management deems an employee’s conduct as constituting gross misconduct, it may exercise its discretion to terminate the employee’s employment. On whether the Claimant was given fair hearing in his abrupt dismissal, the defendant submitted, citing the case of Benedict Hirki Joseph vs. First Inland Bank Nig. Plc. (2010) FWLR Pt. 504, that an employee who was confronted with allegation of misconduct before his employment was terminated cannot complain about lack of fair hearing. The staff certificate verification exercise conducted by the defendant gave all staff an opportunity to present their certificates for verification. It was also in evidence that the Claimant admitted under cross-examination that he was given an opportunity to present his credentials during the staff certificate verification exercise and also signed an undertaking in his employment form to the effect that the particulars given on his employment form are true, and in the event that it is discovered that employment was offered on a mis-statement or omission, it could amount to his dismissal. In the case of Mr. Lawrence Azenabor vs. Bayero University, Kano & Anor. (2009) 17 NWLR (Pt. 1169) Pg. 115, it was held that: “In a master and servant relationship, there is a general power reposed in the employer to dismiss an employer to dismiss an employee for misconduct of any kind. What constitutes misconduct is not clearly spelt out, but “gross misconduct” has been defined as conduct of a grave and weighty character as to undermine the confidence that should exist between employee and employer and misconduct in this sense is what the employer makes it out to be. It could be a series of disobedient actions, acts of insubordination, absenteeism, embezzlement or some other conduct that would be detrimental to the corporate existence of an institution.” The facts and evidence before the court shows that the defendant gave the claimant fair hearing by allowing the Claimant to participate in the staff verification exercise and the need for setting up a panel thereafter lies in the face of good reason as no amount of words/explanations could change the content of a document. The defendant therefore submitted that the Claimant was given fair hearing. The defendant submitted that the Claimant’s issue 5 is totally misconstrued and baseless. The defendant need not cross examine the claimant on every line of his claim. The court is enjoined to look at the totality of the facts vis-à-vis evidence adduced at the trial in arriving at a fair and honest determination of the suit. The claimant merely averred in his statement of facts as to the said claims but did not produce any document in support of his claim. Having not given evidence in support of his claims therefore, the claimant is deemed to have abandoned these claims. In Eastern Breweries Plc., Awo Omamma & Ors. vs. Henry Nwokoro (2012) 14 NWLR (Pt. 1321) Pg. 508F-G, Abba Aji JCA noted that “it is trite principle of our law that pleadings are not evidence. Where a party files his pleadings but does not give evidence in support of his pleadings, he is deemed to have abandoned his case.” Assuming but not conceding that the defendant did not cross examine the claimant as alluded to in issue 5, the defendant submitted that the position of the law is that the onus of proof does not shift from the claimant, as the claimant must succeed on the strength of his case and cannot rely on the weakness of the defence. A party to a suit who asserts the affirmative has the duty to prove same. See Alhaji Otaru & Sons Ltd. vs. Idris (1999) 6 NWLR (Pt. 606) 330. Counsel concluded by urging the court to dismiss the claim of the claimant. I have heard counsel on both sides, and have carefully considered the totality of the evidence before me, the pleadings and averments of the parties and the various issues raised. After a careful examination of the case presented by the parties and the submissions of their counsels in their written addresses, I have identified the following 2 issues to be resolved in this matter: 1. Whether the termination of the claimant’s employment was wrongful and whether his claim for accrued salaries, benefits, and entitlements can be granted? 2. Whether the defendant has proved the counter claim? ISSUE ONE It is the claimant’s case that he was initially temporarily employed by the defendant until April 2002 when his employment was converted to permanent staff as a Loader III. The claimant further averred that in May 2006, his position was changed to that of Handler III. The employment letter, conversion letter and the transfer memo were in evidence as Exhibits CC1, CC2 and CC3 respectively. According to the claimant, by the condition of service regulating the employment as contained in the Junior Staff Handbook, he was to retire from the defendant’s employment when he attains the age of 60 years. The claimant asserts that his employment was however terminated effective 13th August 2009 by the defendant vide Exhibit CC4 without notice and without compliance with the conditions stipulated at pages 33 and 34 of the condition of service. The claimant further contended that upon the termination of his employment, no payment was made to him nor has his entitlements been paid to him. It is on the basis of these facts the claimant alleges that the termination of his employment was wrongful. The facts averred by the claimant relating to his employment with the defendant and the subsequent termination of his employment were admitted by the defendant. These facts are not in dispute. In defence of the claim, the defendant has contended however that the termination of the claimant’s employment was in accordance with the contract of service and the claimant was offered his salary in lieu of notice and work done up to terminal date but subject to deductions. What the defendant is saying in effect is that the termination of the claimant’s employment was not wrongful and he has been paid his entitlements. From the facts presented before this court, it is observed that the areas of dispute are whether or not the termination was wrongful and whether the claimant has been paid his entitlements. These are the crucial issues to be resolved in this matter. From the facts of the claimant’s employment, it is obvious the relationship between the parties is that of common law relationship of master and servant. Therefore, the service relationship between the parties is governed by the terms and conditions as freely entered into or agreed by the parties to regulate the relationship. In this case, the claimant has pleaded that his employment is regulated by the terms and conditions contained in the employee Handbook for Junior Staff and he relied on the terms thereof in contending that the termination of his employment was wrongful. According to the claimant who testified as CW1, his employment was wrongfully terminated as the terms and conditions governing his employment were not followed in determining his employment. In his evidence, the claimant testified that by the terms of the handbook, he is entitled to retire at the age of 60 years, and that notice must be given to him before his employment is terminated. According to the claimant, in paragraphs 6, 7 and 8 of his deposition, he was not issued any query and neither was notice nor his entitlements given to him before his employment was terminated. In the defendant’s statement of defence, particularly paragraph 3 thereof, it is pleaded that besides the conditions of service contained in the claimant’s letter of employment, admitted as Exhibits CC1, there is also the Employees Handbook (for Junior Staff) which contain conditions regulating the relationship. Both parties have therefore agreed that the handbook contains the conditions of service of the employment. The said Handbook was pleaded by both parties in this suit and it was front loaded, alongside other documents, with the claimant’s statement of claim. Counsel to the Claimant, who also represented or is representing other Claimants in 6 other sister cases (for which there was an earlier move to consolidate them), had tendered an original copy in one of the other cases, which is NICN/PHC/56/2013. The claimant’s Counsel had sought and obtained the leave of this court to rely on the said Handbook in this suit also. Evidence has been given in this matter of the conditions in the Handbook which the parties agree govern the employment. The Handbook is a necessary and important document for the determination of this issue. I can therefore rely on it in resolving this issue. See Nigergate Limited vs. Niger State Government (2008) All FWLR (Pt. 406) 1938 where it was held thus- "A court can rely on any document of fact already before it or forming part of its records in the determination of any issue before it” Also in Oyewole vs. Akande (2009) All FWLR (Pt. 491) 813 at 836, the Supreme Court held that- “A court is entitled to look at a document in its file while writing its judgment or ruling despite the fact that the document was not tendered and admitted as an Exhibit at the trial. This is an exercise of judicial discretion which must be exercised not only judicially but judiciously.” As identified earlier, the claimant’s complaints are particularly that he was entitled to retire upon attaining 60 years of age and also entitled to notice to terminate his employment. Exhibit CC1 contain that after confirmation of the claimant’s employment, the employment may be terminated by either party by giving 1 month notice or 1 month salary in lieu. The Handbook contains similar provision at page 6 to the effect that after confirmation of employment, the appointment can be terminated by one month notice or one month salary in lieu of notice. Page 23 of the handbook prescribes 60 years retirement age for men and 55 years for women and at pages 33 to 34, the procedure to be followed in respect of offences that can lead to termination is set out. The law is well settled that in a contract of service of master and servant, as in this case, the employer has the right to terminate the employment of an employee at any time for good or bad reason or for no reason at all. See SHELL PETROLEUM CO. LTD vs. IFETA (2001) FWLR (Pt. 80) 1614 at 1629. Therefore, notwithstanding the terms and conditions contained in the Handbook, the defendant is not under any duty to keep the claimant in its employment until the claimant reaches 60 years of age. By the conditions of service in Exhibit CC1 and the Handbook, the defendant is entitled to terminate the claimant’s employment at any time provided the prescribed notice is given. Both Exhibit CC1 and the Handbook have prescribed one month notice to terminate the employment or one month salary in lieu of notice. Whether or not the termination of the claimant’s employment is wrongful will depend on whether the defendant has given the required notice to the claimant or has paid the claimant the salary in lieu of the notice. Exhibit CC4, dated 10th August 2009, contain that the termination was to take effect from 13th August 2009. Obviously, the notice is inadequate as it is less than 1 month. The said notice having been given for a period less than 1 month, it is inadequate and the defendant is expected, under the condition of service to pay the claimant 1 month salary in lieu of the notice. The content of exhibit CC4 however shows that the defendant has offered the claimant his 1 month salary in lieu of the notice. The question that would then arise is: “Has the defendant paid the one month salary to the claimant?” The claimant has contended that he has not been paid salary in lieu and other entitlements. On its part, the defendant asserts that the claimant has been paid. The defendant pleaded and also put in evidence the fact that the defendant has offered the claimant his salary in lieu of notice and other entitlements but subject to legitimate deductions and outstanding debts. Exhibit CC4 appears to corroborate the defendant’s facts. The exhibit contain that the claimant is to be paid his salary up to 13th August 2009, his 1 month salary in lieu of notice and his leave allowance for 2009. The claimant was further informed in the exhibit that the payments to be made to him will be less “any loan/advances that may be outstanding against you on the company books”. In further proof of the fact that the claimant has been paid his salary in lieu of notice, the defendant tendered the payment voucher, exhibit CA9, in evidence through DW1. The exhibit shows the entitlements of the claimant at the time of termination, which included his salary in lieu of notice, all accruing to the total sum of N178,175.60. The exhibit also indicated that the claimant’s debt on the housing loan stood at N248,333.75. This sum was deducted from the claimants entitlements leaving a balance of N70,158.15 to be paid to the defendant by the claimant. It is thus clear from the evidence of the defendant that the claimant, at the time of the termination of his employment, was indebted to the defendant and the salary the defendant was expected to pay to him in lieu of notice was applied to settle some of his debt. Curiously, and an act I will deem as an admission, the claimant, in his reply to the defendant’s statement of defence, did not deny the defendant’s allegation of his indebtedness to the defendant. From the foregoing facts, it is my view that since it has been established that the claimant was indebted to the defendant and the salary in lieu was converted by the defendant in part settlement of that debt, this court is obligated to hold that the claimant has been paid the salary in lieu of notice including other entitlements due to him at the termination of his employment. The defendant having paid salary in lieu of notice to the claimant, I cannot find anything wrongful with the termination of the claimant’s employment. In its defence to the claim, the defendant went ahead to plead reasons why the claimant’s employment was terminated. The law is settled that where a reason is given for the termination of an employee’s employment, the employer must substantiate the reason at trial otherwise the court will consider the termination to be wrongful. In this instant case, exhibit CC4 did not give any reason for the termination of the claimant’s employment. Therefore, no obligation arises therefrom on the defendant to defend or prove the reason for the termination of the claimant’s employment. Furthermore, the claimant has contended that the procedure in pages 33 to 34 of the handbook was not followed before his employment was terminated. The said pages set out offences that can lead to termination of employment and the procedure to be taken on such offences before termination. Exhibit CC4 did not indicate that the claimant’s employment was terminated as a result of any offence contained in pages 33 and 34 of the Handbook. In that case, the defendant cannot, by any stretch of imagination, be required to comply with the procedure in the said pages of the Handbook when terminating the claimant’s employment. On the whole, I find the termination of the claimant’s employment not wrongful and I so hold. In the 2nd relief sought by the claimant, he claimed for “An order directing the defendant to pay the claimant all the accrued salaries, benefits, and entitlements pursuant to the wrongful termination of the claimant’s appointment from the date of the alleged termination of the claimant’s employment till judgment is delivered and executed”. In support of this claim, the claimant pleaded and set out particulars in paragraph 9 of statement of claim sums of money representing his salaries and allowances from the period his employment was terminated in August 2009 to March 2013. The defendant has denied this claim in its statement of defence. Since it is my finding in this issue that the defendant has the right, under the condition of service, to terminate the claimant’s employment at any time, which right it has been exercised on 13th August 2009, I do not see how this court can grant the said relief sought by the claimant. The salaries and entitlements claimed by the claimant is shown in paragraph 9 of the statement of claim to be the sums the claimant expected to accrue to him from the date of his termination in August 2009 to March 2013. By this claim, the claimant appears to consider his employment as still subsisting and he consequently claims for all the sums he would have earned up to date of judgment. For the avoidance of doubt, the claimant’s employment has ceased since 13th August 2009 by virtue of exhibit CC4. The claimant cannot therefore claim for salaries and entitlements for period he was no longer in the employment. He is entitled only to what he would have earned over the period of notice required to lawfully terminate his employment which is the one month’s salary and any other entitlement he is entitled to under the contract of service at the terminal date. And I find that these have been paid to him. Without any further ado, I resolve issue 1 against the claimant. The claimant’s case fails and his claims against the defendant are accordingly dismissed. ISSUE TWO I now turn to the defendant’s counter claim. In its statement of defence and counter claim dated 23rd September 2013, the defendant counter claimed against the claimant for the sum of N105,634.40 being the claimant’s indebtedness to the defendant. On 12th March 2014 when the defendant was to open its case, the counsel to the defendant orally sought and obtained the leave of this court to amend the sum claimed from the claimant to N70,158.15. Accordingly, the counter claim against the claimant at the trial of this suit is N70,158.15. It is the evidence of DW1 that the claimant was a beneficiary of the defendant’s lump sum Housing Scheme where the defendant advances its staff a percentage of their salaries upfront as interest free loan. The sum is then divided into 12 equal portions and deducted from the staff’s salary in 12 months and where a staff leaves the employment before fully repaying the loan, the staff will be required to pay the unutilized portion of the loan. As a beneficiary of the scheme, the claimant was advanced the sum of N425,715.00 under the scheme and the sum of N35,476.25 was to be deducted from his salary on monthly basis. The claimant had only paid back the sum of N141,905.00 before his employment was terminated. The claimant has an unpaid balance of N283,810 to be paid to the defendant. DW1 testified further that the claimant’s total entitlement at termination was the sum of N178,175.60. This sum, when deducted from his outstanding debt to the defendant, leaves the sum now being claimed from the claimant. Further to the evidence of DW1, the defendant put in evidence exhibits CA 8 and CA9. The set of exhibit CA 8 are the claimant’s pay slips from May 2009 to July 2009. The exhibits show, among other items, the monthly deductions of N35, 476.25 as Housing deductions from the claimant’s salaries for the months. On the other hand, Exhibit CA9 shows the entitlements of the claimant at termination all accruing to the total sum of 178,175.60. The exhibit also indicated that the claimant’s unutilized housing loan stood at N248,333.75. This sum was deducted from the claimant’s entitlements, leaving a balance of N70,158.15 to be paid to the defendant by the claimant. The claimant filed a reply to the statement of defence without including therein a defence to the counter claim. I have perused the claimant’s reply to the statement of defence with the aim to see if the claimant has denied the sum claimed against him anywhere in the averments. After the exercise, I find no fact therein to deny the loan granted to him or of the sum claimed against him. The counter claim appears uncontroverted and unchallenged. When he was being cross examined, the claimant admitted he took the defendant lump sum housing upfront in April 2009 but he never told this court whether he has fully repaid the upfront. The apparent implication is that the claimant has admitted the counter claim and once so admitted, the fact is deemed proved. See EKPEMUPOLO vs. EDREMODA (2009) All FWLR (Pt. 473) 1220. From the foregoing facts, I am satisfied of the indebtedness of the claimant to the defendant. I find the counter claim proved and it is accordingly granted. Issue 2 is resolved in favour of the defendant. In the final analysis, the claimant’s claims fail in entirety while the defendant’s counter claim succeeds. Consequently, it is hereby ordered as follows- 1. The claimant is ordered pay the outstanding balance of the Housing upfront, in the sum of N70,158.15, to the defendant. 2. The claimant is to pay the above sum to the defendant within 30 days from today, failure of which it begins to attract interest of 10% per annum from the time of default until the final liquidation of the judgment sum. 3. Cost of N10,000.00 is awarded against the Claimant in favour of the defendant. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge