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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: September 30, 2014 SUIT No. NICN/PHC/57/2013 Between Wiche Chinda - 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 2nd day of May 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, list of witnesses, witness’ statement on oath, list of documents and copies of documents to be relied upon. These were deemed as properly filed and served by order of court on the 21st day of November 2013. The Claimant on the 17th of December 2013 filed a Reply to the Defendant’s Statement of Defence. The case proceeded to hearing on the 12th day of February 2014. The parties fielded a witness each. The Claimant testified for himself as CW1, while Mr. Sola Omoniyi, an Accountant at the Finance Department of the defendant testified as DW1. Hearing was concluded on the 12h 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. Parties had earlier adopted their respective written addresses on the 13th day of May 2014 and the case was adjourned to 22nd July 2014 for judgment. There was however the intervening event of the Judiciary Staff Union strike which commenced on the 14th day of July 2014, hence this court which is located in the premises of the High Court of Imo State, could not sit anymore. This action progressed into the Court’s vacation. By the 13th day of August 2014, this matter had become caught up by the 90 day statutory period for delivery of judgment prescribed by Section 294(1) of the constitution of the Federal republic of Nigeria 1999 (as amended). In as much as the court is mindful of the provision of Section 294(5) and (6) of the Constitution, parties were nonetheless ordered to re-adopt their addresses on the 22nd day of September 2014. The case of the Claimant is that he was employed by the defendant as a Loader III in October 2004, and had his appointment confirmed in January 2005. 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 N5,530.407.85 (Five Million, Five Hundred and Thirty Thousand, Four Hundred and Seven Naira, Eighty Five kobo) only. The case of the defendant is that the Claimant was employed as a Loader in 2004. His 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 (Exhibit CC1) 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 C1, 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 riddled with inconsistencies as he supplied different dates of birth. Counsel further recalled that the Claimant stated under cross-examination that he does not have a birth certificate but that his cousin swore to an age declaration for him. The Claimant filled 26th June 1968 as his date of birth in the employment and staff certificate verification forms. He wrote that he was 35 years of age in his application letter to the defendant in 2004 indicating that he was born in 1969. St. Aquinas Secondary School testimonial showed that Claimant was 16 years as at 1981 indicating that he was born in 1965. The Claimant claimed to have started primary school education at St. Paul’s primary school, Port Harcourt at the age of 2 years in 1970. The Claimant submitted a declaration of age with a name that was different from names on his credentials and totally at variance with his official name with the defendant. 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 • Who has the burden of proof? 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 CC4), the Claimant was duly notified of the termination of his employment and an advice to the Defendant’s finance department for the payment of his final entitlements. It therefore goes without saying, that what is required is for the defendant to show that the finance department carried out the payment instruction. At the trial, DW1 tendered documents (Exhibits CA9 and CA10) to the effect that the Claimant was one of those who were paid their severance benefits through their respective salary accounts. On the other hand, even though the Claimant testified that he was not paid any severance benefit, he did not adduce any evidence to buttress or sustain his denial. On ‘Who has the burden of Proof’, Counsel to the defendant cited Section 131 of the Evidence Act 2011 which provides that “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exists.” He also cited Section 132 of the Evidence Act 2011 which provides that “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” He added that the defendant had placed credible evidence (Exhibit CA9) before the court to the effect that the Claimant’s severance benefits were calculated and duly paid through his bank account. Counsel then submitted that the onus of proof of a contrary position shifts to the Claimant to show by credible evidence that the payment was not made by the defendant. He cited Section 133(1) of the Evidence Act which provides thus: “In civil cases, the burden of proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.” Section 133(2) of the Evidence Act provides that: “If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence is adduced, and so on successively, until all the issues in the pleadings have been dealt with.” Counsel to the defence went on to submit that the Claimant neither tendered any document indicating that the bank never received money on his behalf from the defendant, nor did he tender his statement of account to show that his account was not credited with payment from the defendant. Counsel cited the case of Jinadu vs. Esurombi-Aro (2005) 14 NWLR (Pt. 944) 142 at 180 where it was held that a where a document is tendered and alleged to have emanated from a particular person, the burden is no longer on that person to show that it was received; the burden is on the other side to prove that it was not delivered nor received from such person or source. He also cited Ansambe vs. B.O.N. Ltd (2005) 8 NWLR Part 928 Pg. 650 where the Court of Appeal held that the onus of proof does not shift to a defendant until a plaintiff has adduced reliable and credible evidence in support of his case. He submitted that the effect of Sections 132 and 133 of the Evidence Act 2011, coupled with the authority of Ansambe vs. BON Ltd is that the Claimant has the responsibility of establishing with affirmative and credible evidence that he never received any payment from the defendant upon the termination of his employment. In the Supreme Court case of Edeani Nwavu & Ors. vs. Chief Patrick Okoye & Ors. (2008) 18 NWLR (Pt. 1118) Pg. 29 at 61, counsel stated, Mohammed JSC was quite instructive in stating that “the general concept of burden of proof in civil proceedings postulates the obligation being placed by law on a plaintiff to present evidence in proof of the fact in issue. In other words, the burden of proof is on the person who is expected to supply the evidence required in proof of his claim i.e onus probandi. Thus, the person who asserts a fact must prove it……it is also he who would fail if no evidence at all is called.” Counsel submitted that mere verbal denial of receipt of such payment without backing up the denial with cogent and credible documents authenticates the credibility of the defendant’s evidence. Where evidence is uncontroverted, unchallenged and credible, it ought to be accepted. In urging the court to hold that the onus of proof is on the Claimant who has woefully failed to discharge same, Counsel cited the dictum of Hon Justice Adekeye in the case of Military Governor of Lagos State & Ors. vs. Adebayo Adeyiga & Ors. (2012) 5 NWLR (Pt. 1293) 291 at 331-332, that “the position of the law where evidence is unchallenged or uncontroverted is that such evidence will be accepted as proof of a fact it seeks to establish. A trial court is entitled to rely and act on the uncontroverted or uncontradicted evidence of a plaintiff or his witness. In such a situation, there is nothing to put or weigh on the imaginary scale of justice. In the circumstance, the onus of proof is naturally discharged on a minimum proof.” 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 therefore 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. The Claimant’s final written address filed on the 27th day of March 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 CC1 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. The defendant’s reply on points of law filed on the 16th day of April 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. N. 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. I have narrowed down the issues for determination into two as follows: 1. Whether the termination of the claimant’s employment by the defendant was wrongful? 2. Whether, should the termination of the claimant’s employment be found wrongful, his remedy lies in the 2nd relief sought by him? ISSUE ONE It is the claimant’s case that he was an employee of the defendant until his employment was terminated vide Exhibit CC4 in August 2009. These facts were not in dispute as they have been admitted by the defendant. What is however in dispute between the parties is that while the claimant contends that the termination was wrongful, the defendant has maintained otherwise. From the facts of this case and the nature of the claimant’s employment, it is obvious that the employment of the claimant is not one protected by statute. It is an ordinary common law relationship of master and servant. 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. The claimant’s complaint is that he was wrongfully terminated as the terms and conditions governing his employment were not followed in terminating his employment. To succeed in his claim, the claimant must prove the terms of the contract and prove in what manner the said terms were breached by the employer. In supplying the required proof, the claimant, as CW1, testified that his employment is covered in the Junior Staff Employee Hand Book. By the terms of this handbook, he is entitled to retire at 60 years, and that notice must be given to him before his employment is terminated. According to the claimant, in paragraphs 6 and 7 of his deposition, he was not issued any query and no notice was given to him before his employment was terminated. He therefore contends that the termination of his employment was wrongful as the conditions in the employee handbook to be followed in terminating his employment were not followed. I have seen from the statement of defence, particularly paragraph 3 thereof, and the evidence adduced by the defendant 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. The said Handbook was pleaded by both parties and was front loaded with the claimant’s statement of claim. Counsel to the Claimant herein, who also represented 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 NICN/PHC/56/2013. He therefore sought and obtained the leave of this court to rely on the said Handbook, which was pleaded by both parties and frontloaded with the Claimant’s statement of Claim. Evidence was also given 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 considering this issue. See Nigergate Limited vs. Niger State Government (2008) All FWLR (Pt. 406) 1938 "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. The Supreme Court has held in Oyewole vs. Akande (2009) All FWLR (Pt. 491) 813 at 836 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.” Exhibit CC1 prescribes one-month notice of termination or one-month salary in lieu of notice. At page 23 of the handbook, 60 years retirement age is prescribed for men and 55 years for women. At page 6, it provides that after confirmation of employment, it can be terminated by one month notice or one month salary in lieu of notice and at pages 33 to 34 the procedure to be followed in respect of offences that can lead to termination is set out. Notwithstanding the terms and conditions contained in Exhibit CC1 and the Handbook, it is well settled that in a contract of service that does not enjoy statutory flavour, the employer has the right to terminate the 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. The defendant, therefore, is not under any duty to keep the claimant in its employment until he reaches 60 years old. The defendant is entitled to terminate the claimant’s employment at any time provided the prescribed notice is given. The claimant’s employment was terminated vide Exhibit CC4 on 10th August 2009. Going by the condition of service, at pages 6-7 thereof, the claimant is entitled to one month’s notice of termination or one month’s salary in lieu of notice. Accordingly, Exhibit CC4 offered the claimant one month’s salary in lieu of notice. The exhibit further indicated the entitlement of the claimant to salary for August 2009 and leave allowance. The claimant has however contended that he has not been paid the sums. Exhibit CC4, dated 10th August 2009, contain that the termination was to take effect from 13th August 2009. Obviously, the notice is adequate as it is in compliance with both Exhibit C1 and the employee handbook. Infact the Claimant testified under cross examination that he understood by the terms of his employment, that termination of his employment was to be by one month’s notice or one month’s salary in lieu of notice. The question that will arise is: “Has the defendant paid the one month’s salary to the claimant?” The claimant has contended that he has not been paid the sum including other entitlements. The defendant, through DW1, has contended otherwise. It is the defendant’s evidence that the claimant has been paid. In further support of his testimony, DW1 tendered Exhibits CA9 and CA10 in evidence. Exhibit CA9 is a letter from the defendant to the Oceanic Bank International Plc., instructing the bank to credit certain amounts into the accounts of some of its former staff. On the face of Exhibit CA9, it was not acknowledged by the bank. Perhaps if the defendant’s instruction to the bank (Exhibit CA9) was received and acknowledged by the bank, the court may have considered it as sufficient proof of payment to the claimant. See SALEH vs. BANK OF THE NORTH (2006) All FWLR (Pt. 310) 160 at 169. Exhibit CA10 is a payment schedule containing the names and account numbers of those to be paid. The claimant’s name is listed as one of those to be paid; and against his name is the sum of N84,676.24 (Eighty Four Thousand, Six Hundred and Seventy Six Naira, Twenty Four Kobo) only to be paid to him. The defendant’s obligation in respect of the termination of the claimant’s employment would have been discharged if there is any indication that the sum reflected against the claimant’s name on exhibit CA10 was received by him. Besides that the defendant did not show any evidence of receipt, it also could not show that the sum was paid into the claimant’s account. Once the claimant avers that he has not been paid, the burden is on the defendant to prove that the claimant has received the money. On the face of Exhibits CA9 and CA10, there is nothing to show that the claimant received the money. The defendant is expected to take a further step. The defendant’s counsel, in paragraph 5.13 to 5.22 of his written address, submitted, quite strangely, that the burden of proof is on the claimant to prove that he did not receive payment. That the claimant “did not receive” payment is not a fact capable of being proved by evidence as it is relates to a state of things which, he said, never existed or happened. In my view, it is the defendant who alleged that it paid the money to the claimant to supply the proof of the payment and receipt. If according to the defendant’s counsel, the money was paid into the claimant’s account, the best evidence would be the bank teller or an acknowledgment showing that the bank received the money. See SALEH vs. BANK OF THE NORTH (2006) All FWLR (Pt. 310) 160 at 1609. Exhibits CA9 and CA10 do not satisfy the required proof. I am convinced that the Claimant has not been paid the sum in Exhibit CA10. I do not have any reason to believe that the defendant has paid the sum of N84,676.24 (Eighty Four Thousand, Six Hundred and Seventy Six Naira, Twenty Four Kobo) to the claimant. Therefore, the defendant’s failure to give the claimant the required one-month notice or to pay his one-month’s salary in lieu of the notice renders the termination of the claimant’s employment wrongful. In its defence to the claim, the defendant tried to give reasons why the claimant’s employment was terminated. Where a reason is given for termination of an employment, the employer must prove the reason otherwise the termination will be considered wrongful. In this instance, Exhibit CC4 did not disclose any reason for the termination of the claimant’s employment. Therefore, no obligation arises therefrom on the defendant to give any reason in defence or prove the reason at trial. Having found that the termination of the claimant’s employment was wrongful, what is the appropriate remedy for the claimant? The consideration of this question necessarily leads into consideration of issue two. ISSUE TWO Issue one having been determined in favour of the claimant, what is his remedy for the wrongful termination of his employment? In cases of wrongful termination of employment, damages are the employee’s appropriate remedy in law. The basis for this law is where an agreed procedure for termination is not followed, such failure is a breach and it makes the employer liable in damages. The measure of damages to be awarded in proven cases of wrongful termination is limited to the amount the claimant would have earned over the period of the notice. This was put succinctly thus in C.B.N V. ARCHIBONG (2001) FWLR (Pt. 58) 1032 at 1052 “where there is a written provision for terminating the contract of employment and there is a breach of the of the written procedure, what the employee would be entitled to is the salary for the period of the notice which the employer would have given him as notice to terminate the employment”. This principle lays out quite clearly that the claimant’s remedy is in damages and its measurement is the amount of the salary to be paid in lieu of notice. See also GATEWAY BANK OF NIG. PLC vs. ABOSEDE (2001) FWLR (Pt. 79) 1316 at 1337. An additional authority cited by the Claimant is found in Paragraph 2125 of Page 753 of Lai Oshitokunbo Oshisanya’s book titled “An Almanac of Contemporary Judicial Restatements” wherein the author cited World View International Foundation vs. Bah (1997-2001) GR 512 @ 517. It was held in that case that the purpose which underpins the award of damages for wrongful dismissal is not to punish the defendant but simply to compensate the plaintiff who is not entitled to make a profit out of the breach of contract; he is simply to be compensated for the loss suffered on account of the breach to the extent that such loss was reasonably foreseeable as likely to result. In Paragraph 2126 of the same book, the author cited the case of Banjul Breweries Ltd vs. Ceesay (1997-2001) GR 220 @223-5 where it was stated that the measure of damages for wrongful dismissal is determined by calculating the amount of salary the employee would have earned until he gets a new job, or within a reasonable time after the wrongful dismissal. While I recognize the point sought to be made by counsel from the above authorities, yet, I find it pertinent to draw counsel’s attention to the Supreme Court decision in SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS. (2008)34 NSCQR Pt. II 1287 Per Muhammad JSC where the principle was more clearly stated thus: “The damages recoverable usually in cases of wrongful dismissal/termination have well been pronounced upon by our courts in several decided cases, such damages are said to be the losses reasonably foreseeable by the parties at the time of the contract as inevitably arising if one breaks faith with the other. Certainly, they do not include or take account of speculative or sentimental values. The court in awarding damages will certainly not include compensation for injured feelings or the loss that may have been sustained from the fact that the employee having been dismissed makes it more difficult for him to obtain fresh employment.” It has long been a settled principle of law that the measures of damages recoverable in situations of wrongful termination or dismissal of a servant are determined by what the employee would have earned over the period of notice required for the determination of the employment. See Geidam vs. N.E.P.A (2001) 2 NWLR (Pt.696)45. Oguntade JSC has stated in the case of Osisanya vs Afribank (2007) 6 NWLR (Pt. 1031) 565 that “The law is well settled that where a contract of employment is terminable on notice, and the employee is not given the requisite notice, what the employee could have earned during the period of the notice is the damages that the employee can get.” In the instant case, the claimant seeks “An order directing the defendant to pay the claimant all the accrued salaries, benefits, and entitlements pursuant to the wrongful termination of the claimants appointment from the date of the alleged termination of the claimant’s employment till judgment is delivered and executed”. In paragraph 9 of his statement of claim, the claimant set out and particularized the salaries and entitlements that were to accrue to him from the date of his termination in August 2009 to March 2013. By this claim, the claimant chose to treat the contract as subsisting in view of the wrongful termination, and he is consequently claiming for the entire amount he would have earned up to the date of judgment. Termination of employment, even if wrongful, brings to an end the relationship between employer and the employee. In this case, the claimant’s employment had come to an end on the date of Exhibit CC4. He cannot claim for salaries and entitlements for the period he was no longer in employment. He is entitled to only what he would have earned over the period of notice required to lawfully terminate his employment which is the one month’s salary she is entitled to under the contract of service, and other entitlements stated in Exhibit CC4, which is reflected in Exhibit CA10 as N84,676.24 (Eighty Four Thousand, Six Hundred and Seventy Six Naira, Twenty Four Kobo) only. In his arguments in respect of issue 5 formulated by him in his written address, counsel to the claimant submitted that this court should order the sums as claimed because it was not challenged by the defendant. With respect to counsel, a claim that is not grantable in law cannot be granted simply because the other party did not challenge or oppose it. The 2nd relief sought by the claimant is not the appropriate claim in the circumstance. It cannot therefore be granted and I accordingly refuse same. Since I have found in this judgment that the money stated by the defendant against the Claimant’s name Exhibit CA10 N84,676.24 (Eighty Four Thousand, Six Hundred and Seventy Six Naira, Twenty Four Kobo) as his entitlements upon termination, has not been paid to the claimant, I hold that he is entitled to be paid. In consequence, I hereby order as follows: 1. It is declared that the termination of the claimant’s employment was wrongful. 2. The defendant is hereby ordered to pay to the claimant the sum of N84,676.24 (Eighty Four Thousand, Six Hundred and Seventy Six Naira, Twenty Four Kobo) only, being the claimant’s entitlement at the time of termination of his employment. 3. The defendant is to pay the sum ordered in (2) above, to the claimant within 30days 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. This is in line with the provision of Order 21 Rule 4 of the NIC Rules, 2007. 4. Cost of N50,000.00 is awarded in favour of the Claimant. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge