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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: DECEMBER 15, 2014 SUIT NO. NICN/LA/356/2012 BETWEEN Mr. Emmanuel Kayode Musa - Claimant AND Arbico Plc - Defendant REPRESENTATION Miss O. O. Dansu, and with her is Miss Mary Akin-Ajayi, for the claimant. K. A. Oluwadare, and with him is Miss Sandra O. Mbakwe, Dipo Famodimu and Miss Kemi Bomola, for the defendant. JUDGMENT The claimant took up a complaint dated and filed on 18th July 2012 against the defendant. By an amended statement of facts dated and filed on 21st February 2013 the claimant is claiming for the following reliefs – (1) A declaration that the purported summary dismissal of the claimant from the employment of the defendant is unlawful, invalid, null and void and of no effect. (2) An order setting aside the defendant’s purported letter of summary dismissal of employment dated 29th April 2011. (3) An order directing the defendant forthwith to pay to the claimant outstanding and due entitlements and benefits as follows – (a) Arrears of salary from August 2009 to February 2010 N2,338,245.00 (b) Arrears of salary from April 2010 to August 2010 N7,525,750.00 (c) Leave pay and leave allowance for the years 2008 to 2010 N994,775.00 (d) Outstanding Retirement Benefit N14,562,942.47 (4) An order directing payment of Legal Practitioner’s fee arising as a result of this proceeding as follows – (a) Initial deposit on Professional fee of N250,000.00 (b) 7.5% of the sums awarded by this Honourable Court as entitlements due to the claimant. (5) Payment of interest by the defendant on the sums awarded by this Honourable Court as due to the claimant under reliefs (1) and (2) above at the rate of 10% per annum from the date of judgment until full liquidation or alternatively interest at such rate and for such period as the Honourable Court may think fit. (6) Costs. Accompanying the complaint were the statement of claim, list of witnesses, claimant’s written statement on oath, list of documents to be relied upon at trial and copies of the documents marked as Exhibits A – I. In reaction, the defendant filed its statement of defence dated 3rd August 2012 within time. Also filed by the defendant are the defendant’s list of witnesses, written statement on oath, list of documents and copies of the documents marked as Exhibits D1 – D9. The claimant reacted by filing a reply to the statement of defence together with the claimant’s further witness statement on oath, claimant’s list of additional documents and copies of the documents marked as Exhibits J – M (and M1). Thereafter, the defendant filed additional documents, Exhibits D10 – D12. The claimant made an application to Court dated 22nd January 2013 to amend its statement of claim but same was withdrawn on 5th March 2013. In its stead, a motion on notice dated 21st February 2013 for an amendment of the claimant’s statement of claim was moved and granted on 5th March 2013. Consequently, the amended statement of claim dated 21st February 2013 was filed. Further documents were filed by the claimant, namely, Exhibits N, O and P. In all, the Exhibits frontloaded by the claimant were marked Exhibits A – P. The defendant then filed a consequential amended statement of defence on 24th May 2013 together with defendant’s list of witness, defendant’s witness statement on oath, list of documents and copies of the documents. At the trial, the claimant testified on his own behalf as CW, while Charles Nkwocha, an Accountant with the defendant, testified for the defendant as DW. At the close of evidence, parties were asked to file and serve their respective written addresses starting with the defendant in accordance with Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. The defendant’s final written address is dated and filed on 29th April 2014, while that of the claimant is dated and filed on 8th May 2014. The defendant’s reply on points of law is dated and filed on 3rd June 2014. The case of the claimant is that he was at material times an employee of the defendant, having been first employed by the defendant in March 1977 as an Accountant and ascended to the position of Company Secretary and Financial Controller of the defendant. That the National Joint Industrial Council (NJIC) Agreement on Terms and Conditions of Service in the Building and Civil Engineering Industry in Nigeria for all senior employees admitted as Exhibit C was adopted by the defendant to regulate the conditions of service of its senior employees and is used as the minimum standard for payment of benefits due to senior employees and top executives. That he retired from the services of the defendant via his notice of retirement dated 31st August 2010 and received on the same date. That there is no evidence before this Court that the purported notice of his dismissal was in fact delivered to him. In fact, that he could not have been validly dismissed as he had already retired from the services of the defendant prior to the date of the purported dismissal letter. The claimant went on that the defendant failed to put any evidence forward to prove the allegations of misconduct, fraud and forgery warranting the purported dismissal thus the defendant did not discharge its burden of proof beyond reasonable doubt and the baseless assertions/allegations of fraudulent diversion or misappropriation is not sufficient ground to hold on to the claimant’s terminal entitlements. That the claimant established by credible and uncontroverted evidence that he is entitled to his terminal entitlements as claimed in his statement of claim. To the claimant Exhibit D6 referred to as “Final Agreement on the meeting held on the 27th August 2010 between New Investors, Management and Union Representatives and Workers” is not binding on him as he was not named as a party to the agreement and the claimant only executed same as a management representative/agent of the defendant. Furthermore, that the promise to pay a lesser sum in satisfaction of a greater sum cannot operate as a bar to a claim for the whole sum. But that assuming without conceding that the claimant is a party to Exhibit D6, same is still unenforceable against him as the defendant breached and repudiated Exhibit D6 when it failed to pay him his entitlement within the time stipulated therein thus the claimant is entitled to his full terminal entitlements. The claimant then urged the Court to grant his claims in their entirety. The case of the defendant is that the claimant was an employee of the defendant as an accountant and financial controller until the claimant’s employment was terminated by the defendant on 29th April 2011. That in 2009 the defendant discovered that the claimant had misappropriated company funds while in office as the financial controller. An external auditor was appointed to investigate the financial impropriety, gross misconduct and acts of mismanagement of funds by the claimant. The claimant was thereafter asked via a letter dated 27th February 2011 to answer the allegations brought against him but he refused to honour the letter. Subsequently, the claimant was dismissed from the employment of the defendant via a letter dated 29th April 2011. The defendant framed two issues for the determination of this Court, namely – 1. Whether the defendant validly dismissed the claimant from its employment via the letter dated 29th April 2011. 2. Whether the claimant is entitled to terminal (retirement benefits) and the reliefs claimed in this suit on the pleadings and preponderance of evidence led by the parties in this suit. Regarding issue 1, the defendant submitted that in any master and servant relationship an employer is at liberty to dismiss an employee for misconduct. It, therefore, goes without saying that ordinarily a master is entitled to dismiss his servant from his employment for good or for bad reasons or for no reasons at all. That once it is established that a relationship of master and servant exists then it carries with it all its attendant consequences, one of which is the right to terminate the services of his servant according to the terms of the contract between them. However, in determining whether the employer lawfully dismissed the employee, the conditions laid down in the terms of employment must be conformed to, citing Momoh v. CBN [2007] 14 NWLR (Pt. 1055) 521 – 522 and 526 – 527. To the defendant, there is no dispute in the present case as to the fact that the claimant was an employee of the defendant. That during examination in chief of the claimant, he had stated that he worked with the defendant for 33 and half years, a fact which was not contravened by the defendant in this suit. That the employment of the claimant is guided by a letter of employment and NJIC Agreement on terms and conditions of service for all senior staff employees. The defendant then submitted that it was established from the evidence adduced by the defendant’s witness that the defendant dismissed the claimant on 29th April 2011, referring to Exhibit D2. That the defendant dismissed the claimant for gross misconduct and in line with the provisions of the NJIC Agreement particularly Article 20(A) which provides that in the case of misconduct, an employee may be summarily dismissed, in which case he will not be entitled to any benefits, citing Nwobosi v. ACB Ltd [1995] 6 NWLR (Pt. 404) 686 where the Supreme Court held that an employer may summarily dismiss an employee without notice and without wages if the employee is guilty of gross misconduct. That it is well established in labour relations that dismissal is punitive and depending on the contract of employment very often entails a loss of terminal benefits. It is the ultimate labour sanction which carries an unflattering opprobrium to the employee, referring to Jombo v. PEFMB [2005] 14 NWLR (Pt. 945) 457 at 467. The defendant continued that the claimant in the present suit was found to have disregarded procedure and conducted himself unreasonably in the discharge of his duties as the Financial Controller of the defendant. This, in view of his profession and position in the defendant makes it a grave offence warranting the ultimate sanction of dismissal. The gross misconduct said to have occasioned the dismissal of the claimant include the discovery in 2009 that the defendant’s management audit/account was not prepared for three years and for which an external auditor was appointed for that purpose, the failure of the claimant to adhere to the dictates of his duties and the claimant as financial controller not keeping proper financial inventory/records of the defendant company which led to the suspension of the defendant from the Nigeria Stock Exchange and the payment of N3,000,000.00 as punitive charges against the defendant as well as the defendant subjected to bear the responsibility for the claimant’s ineptitude at his job. To the defendant, also of paramount importance is the fact that the claimant was responsible for preparing management payroll and cash disbursement. To this end, the claimant unilaterally determined additional allowances for himself without any approval, referring to Exhibit D5 which is the claimant’s payroll showing that the claimant unilaterally increased his take home pay in his capacity as the Financial Controller of the defendant and also made payment of retirement benefits to himself while in the employment of the defendant. These facts are contained in paragraphs 18, 39 and 40 of the defendant’s witness statement on oath and corroborated by Exhibit D5. That paragraph 19 of the statement of defence also states that the claimant diverted funds from various project accounts kept as cash in the claimant’s custody without approval and with no record of disbursement. Furthermore, in paragraph 29 of the statement of defence it was stated accordingly that the claimant took his leave for the year 2008 and 2009 and as part of the mismanagement by the claimant, the claimant overpaid himself his leave allowance for the cost of visa and ticket fare for the claimant’s leave from the defendant's petty cash; this is corroborated by Exhibit D7. That the claimant also paid himself several other unauthorized cash payments which bring the total amount paid by the claimant to himself to the sum of N6,000,000.00. It is the submission of the defendant that the claimant was in wilful disobedience to the lawful and reasonable order of defendant and this warranted his being dismissed from the employment of the defendant. More so, that this borders on criminal conduct and fraud. That the Supreme Court had held in Nwobosi v. ACB Ltd (supra) that wilful disobedience to the lawful and reasonable order of the master justifies summary dismissal. Also that the Supreme Court stated that Misconduct, inconsistent with the due and faithful discharge by the servant of the duties for which he was engaged is good cause for his dismissal but there is no fixed rule of law defining the degree of misconduct which will justify dismissal. The defendant then urged the Court to hold that the claimant’s conduct in carrying out his duties as the Financial Controller was such as to undermine the confidence which should exist between an employee and an employer. That the claimant’s gross misconduct was only discovered when an external audit was conducted and the claimant did not co-operate with the auditors which then warranted the defendant to instruct him to go on compulsory leave as in Exhibit D2. On what constitutes gross misconduct as to ground summary dismissal, the defendant referred to Supreme Court in Nwobosi v. ACB Ltd (supra). That working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss an employee, referring to CCB (Nig.) Ltd v. Nwankwo [1993] 4 NWLR (Pt. 286) 172. See also Abomeli v., NRC [1995] 1 NWLR (Pt. 372) 451 at 466. The defendant continued that the claimant’s reply to the defendant’s statement of defence attempted to explain away the payments the claimant made to himself as retirement benefits. That in paragraphs 37, 38, 39, 40 and 41 of the reply to the statement of defence, the claimant claimed that he sent a letter dated 2nd March 2009 to the defendant requesting that his retirement benefits be paid as well as his arrears of salary. That the claimant failed to attach the said letter and the said letter was not responded to by the defendant. That this is a fact that speaks for itself in that the defendant was not served with any such letter, neither was any instruction given to the claimant to pay himself retirement benefits. To the defendant, the claimant’s impudence is apparent in this regard as he just went ahead to carry out duties ultra vires his position by not only increasing his salary but also paying himself retirement benefits. The defendant then urged the Court to note that before the claimant was summarily dismissed, he was given the opportunity to defend himself in a letter dated 27th February 2011, referring to Exhibit D4. That the claimant did not respond to this letter thereby waiving his right to be heard. He cannot, therefore, turn around to claim that his dismissal was unlawful, quoting inappropriately I would say, Jombo v. PEFMB [2005] 14 NWLR (Pt. 945) 457 at 465 dealing with termination, not dismissal of employment. It is the defendant’s position in this case that the claimant was effectively dismissed by virtue of the dismissal letter dated 29th April 2011. That the defendant has put documents before this Court to show that the claimant was in consistent disregard of the instructions of the defendant and the scope and function of his office. To further buttress the gross misconduct of the claimant, the defendant stated with emphasis that while the claimant was in the employ of the defendant, approval of salaries was not part of his job description. That the claimant testified under oath to this same fact while giving his evidence in Court. That if the approval of salaries is not part of the claimant’s duties then it begs the question how the claimant unilaterally increased his salaries and caused same to be paid to himself as evidenced in Exhibit D5. That it is on the basis of the claimant’s misconduct that the claimant’s appointment was duly terminated by summary dismissal. That DW gave evidence before the Court to the effect that the claimant was served with the dismissal letter by one of the dispatch riders utilized by the defendant for such purposes. That the claimant refused to acknowledge receipt of the said letter hence the absence of any acknowledgment on the letter of dismissal. That the letter of dismissal was served on the claimant following the letter of compulsory leave dated 27th September 2010 and the letter dated 27th February 2011 which gave the claimant ample time to defend himself. To the defendant, the exhibits before the Court lend credence to its case, referring particularly to Exhibits D5, D7 and D8. That while Exhibit D5 shows the series of payroll for specific months in the year 2008 which the claimant used to jack up his salary from the sum of N137,900.00 to N224,350.00, Exhibit D8 shows the manner in which the claimant paid himself retirement benefits while still in office. The defendant went on that by virtue of the National Joint Industrial Council Agreement on terms and conditions of service for all senior staff employees, the claimant’s appointment was terminated by dismissal. The defendant had stated that the actions of the claimant were in direct disobedience of the defendant’s instructions particularly as it relates to the claimant’s job description. The defendant then urged the Court to hold that the dismissal of the claimant was valid in line with the terms of employment of the claimant. That the proper procedure was followed in dismissing the claimant and the failure of the claimant to acknowledge the letter does not negate the existence and delivery of the letter to the claimant. To the defendant, the claimant’s case is that he retired on 31st August 2010 before the defendant dismissed him. That the evidence before this Court is a backdated letter of retirement (Exhibit A) invented by the claimant so as to claim retirement benefits from the defendant. That the defendant has proved before this Court that the claimant was served with a letter of compulsory leave in September 2010 (Exhibit D2) because of his reluctance to co¬operate with the external auditors who were appointed to audit the defendant’s accounts. That the claimant’s purported retirement was an afterthought which was premeditated to make it appear as though he had applied for his retirement before the letter of dismissal was handed over to him. That the claimant was well aware of the goings on in the company and was quick to take cover conveniently under the guise of a retirement, urging the Court to so find and hold. That the argument of the claimant that the letter of dismissal (Exhibit D1) was not acknowledged cannot stand. To the defendant, the letter of dismissal does not need to be acknowledged as long as proper procedure was followed, referring to TOS Benson v. Samuel Onitiri [1960] 5 FSC 69, 80 and 81 and Amadi v. African Publishing & Printing Limited [1967] NCLR 63 at 66 where the Court held that an understood intention to terminate an employment suffices. That the letter of dismissal is valid and is in accordance with the terms and conditions of service guiding the employment of the claimant with the Defendant. To the defendant, the National Joint Industrial Council Agreement particularly Article 20(A) and 37(B) supports the dismissal of the claimant. That it is not stated in the terms and conditions of service whether the claimant is entitled to notice. A summary dismissal is an instant dismissal that requires no notice and the defendant has led evidence to show that the gross misconduct of the claimant warranted his summary dismissal. That the test for determining misconduct in the law of master and servant was espoused in the case of National Bank of Nigeria Limited v. Omotayo [2002] FWLR (Pt. 114) 465 – 466 as one that is subjective i.e. what the employer considers to be misconduct. The defendant continued that the claimant had worked with the defendant for 331/2 years, during which time the defendant had put implicit trust in the claimant. Upon the claimant’s failure to adhere to the dictates of the defendant by being an upstanding employee with respect to the duties and responsibilities assigned to his office, the defendant’s automatic reaction was a summary dismissal. That the length of service of the claimant does not nullify wrong doing. It is the submission of the defendant that the claimant was dismissed from the employment of the defendant lawfully, urging the Court to hold in favour of the defendant on issue 1 as raised. Furthermore, that the claimant failed to establish the fact that his dismissal was unlawful. To make the dismissal unlawful it would mean that the claimant claims that he was not given fair hearing before being dismissed. That a dismissal of this nature, however, is a summary one which is done instantly upon the discovery of the gross misconduct as prescribed under the terms and conditions of his employment. In this suit, that the defendant was careful and diligent enough to carry out its findings before dismissing the claimant having sent him a letter dated 27th February 2011. The claimant did not respond to the call in the letter to defend himself. At this juncture, that it is important to note the distinction between wrongful dismissal and unlawful dismissal, citing Shell Pet. Dev. Co. v. Lawson-Jack [1998] 4 NWLR (Pt. 545) 274. That the claimant in this suit claimed to have been unlawfully dismissed from the employment of the defendant. That what the claimant failed to state is what made his dismissal unlawful. That for a person to claim to have been unlawfully dismissed his employment must be protected by statute, citing Imoloame v. WAEC [1992] 9 NWLR (Pt. 265) 303 at 317. That from these authorities cited, it can be deduced that the claimant cannot successfully argue that he was unlawfully dismissed from the employment of the defendant because his appointment is not protected by statute. Assuming without conceding that the claimant was right to have claimed that he was wrongfully dismissed, the defendant submitted that he must prove the terms and conditions of his contract of employment and in what manner the said terms were breached by the defendant. Furthermore, that if any damages for breach of contract shall accrue, it shall be calculated to cover the period of notice necessary to terminate the contract as stipulated in the contract of service together with other accrued entitlements, if any, referring to Imoloame v. WAEC (supra). To the defendant, the rationale upon which issue 1 is based is simple. That the claimant was dismissed from the employment of the defendant and, therefore, cannot be entitled to any benefits. That the claimant’s claim that he was unlawfully dismissed cannot hold because his employment is not guided by a statute. Also if the claimant wants to fall back on a claim for wrongful dismissal which is clearly distinguished from an unlawful dismissal, the only entitlement he can get is the sum he ought to get based on the notice he ought to receive before dismissal. This argument will also not stand because the claimant was summarily dismissed hence no notice is to be given to him in that regard. Therefore, the claimant is not entitled to the reliefs sought based on the validity of his dismissal. On issue 2 i.e. whether the claimant is entitled to terminal (retirement) benefits and the reliefs claimed in this suit on the pleadings and preponderance of evidence led by the parties in this suit, the defendant contended that this second issue was formulated for the determination of this Court in the unlikely event that the Court holds otherwise in respect of issue 1 above. To the defendant, assuming without conceding that the claimant is entitled to any retirement benefits at all as he has purportedly tendered his resignation letter before he was dismissed, such benefits shall be based on the calculation in paragraphs 35 and 39 of the statement of defence which amounts to the sum of N1,081,826.28. The defendant then urged the Court to take into cognizance the fact stated in paragraph 25 of the statement of defence which is to the effect that an agreement was signed between investors and staff of the defendant in August of 2010 (Exhibit D6). That the Court should take specific note of Exhibit D6, the agreement to which the claimant appended his signature and consent/agreement to the manner of payment of outstanding salaries for all staff, both junior and senior. The contention of the defendant is that whatever benefit or salaries outstanding which are to be paid to the claimant shall be calculated in accordance with the signed agreement (Exhibit D6). That it is also pertinent to note that at the time Exhibit D6 was executed, the defendant was going through some changes internally at the management/ownership level and the defendant is just beginning to stabilize. That the claimant, while under cross-examination, said that he was aware of Exhibit D6 (the agreement) but he claimed that the agreement did not cover him. That a perusal of the Exhibit D6 reveals that the agreement is to cover both senior and junior officers. The claimant is a senior officer and, therefore, covered by the agreement, hence the manner of payment covers the claimant as well and it was based on this agreement that the defendant calculated the entitlement to the claimant. That the defendant’s special consideration to pay the claimant any benefits at all is based on the long years of service put in by the claimant. That as a senior officer at the defendant company the claimant’s entitlement and outstanding salaries is to be paid on the basis of percentages as agreed between the investors and the staff of Arbico Plc dated 27th August 2010 which was agreed at 40% of entitlement for senior staff and 75% of outstanding salaries. The defendant went on that based on the agreement, it duly calculated the total retirement entitlement of the claimant at 21/4 of the claimant’s monthly salary for 33 and half years as follows – Monthly Salary = N197,600.00 21/4 of monthly basic salary = N444,600.00 331/2 years x N444,600.00 = N14,894,100.00 40% of N444,600.00 = N5,957,640.00 That in the statement of defence filed before this Court, the defendant had stated in paragraph 34 the basis for the calculation of the claimant’s monthly salary which is a combination of his basic salary (N123,500.00) and housing allowance (N74,100.00) bringing the amount to N197,600.00. The defendant continued that the claimant had paid himself retirement benefits while in office and also made unauthorized cash payments to himself (Exhibits D5 and D7). That the claimant has not been able to prove to the Court that he is entitled to the benefits claimed. The claimant has asserted that he is entitled to the sum of N14,562,942.47 but that he has been unable to prove to the Court on the preponderance of evidence that he is entitled to this sum. That by virtue of section 134 of the Evidence Act 2011 “the burden of proof shall be discharged on the balance of probabilities in all civil proceeding”. That it is trite law that he who asserts must prove. The person who makes allegations in a pleading is by the ordinary rules of pleading bound to produce evidence to substantiate them as part of his case and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading, citing UTC (Nig.) Plc v. Phillips [2012] 6 NWLR (Pt. 1295) 169. The defendant then urged the Court to hold that the claimant is not entitled to the reliefs listed in its amended statement of claim and also hold that if the claimant is entitled to any payment at all, it be calculated as in paragraph 39 of the amended statement of defence being the sum of N1,872,159.97 (One Million Eight Hundred and Seventy Two Thousand, One Hundred and Fifty Nine Naira, Seventy Kobo) only which was calculated as follows – Total outstanding salary arrears payable N2,897,546.25 (being total salary arrears payable for August 2009 to February 2010 and April 2010 to August 2010 calculated at 75% of the total salary arrears of N3,863,395.00 as contained in Exhibit D6) Total Retirement Benefits payable N5,957,640.00 (calculated above) Total leave allowance payable N98,800.00 (pro rated sum for 8 months spent in 2010) Total N8,953,986.25 Less amount fraudulently paid to self N6,000,000.00 Less amount payable to claimant (loan) N1,081,826.28 Total amount payable to the claimant N1,872,159.97 To the defendant, its argument on issue 2 is that the claimant’s entitlement is to be calculated based on the agreement (Exhibit D6) entered by the staff of the defendant and the management. That the claimant’s claims for the benefits stated in his statement of claim are not backed up with documentary evidence. That the claimant has also been unable to refute the claims made by the defendant on the misappropriation of funds which warranted the deductions made by the defendant on the claimant’s final benefits. The defendant then urged the Court to hold that the claimant is only entitled to the sum of N1,872,159.97 and not the sum of N14,562,942.47. In conclusion, the defendant urged the Court to dismiss the claim of the claimant for lack of merit and hold in favour of the defendant. The claimant first abandoned relief 4 and then narrated what to him is his case. Thereafter, the claimant framed 5 issues for the determination of the Court, namely – 1. Whether the purported letter of dismissal dated 29th April 2011 raising allegations of negligence, incompetence and financial impropriety without any proof of same (issued 9 months after the claimant had retired from his employment and never received by or delivered to the claimant) amounts to a lawful and valid dismissal of the claimant from the defendant’s employment. 2. Whether the claimant has established based on balance of probabilities his claim for terminal entitlements. 3. Whether Exhibit D6 referred to as “Final Agreement on the meeting held on 27th August 2010 between New Investors, Management and Union Representatives and Workers” is binding on the claimant. 4. Whether the unsubstantiated allegation of financial crime made against the claimant can operate as a bar to the claimant’s right to his terminal entitlements. 5. Whether the claimant is entitled to post-judgment interest on any judgment sum awarded in his favour. Regarding issue 1, the claimant contended that he testified before this Court that prior to tendering his final notice of retirement dated 31st August 2010 i.e. Exhibit A, he had given prior notices of retirement via Exhibits J and K. All the notices were received by the defendant as evidenced by the defendant’s receipt stamp affixed thereon, referring to paragraphs 11 to 14 and 40 to 45 of the claimant’s further witness statement on oath filed on 14th August 2012. That the defendant did not challenge the notices of retirement; neither did they communicate to the claimant at any point in time afterwards that his retirement was not accepted or that he had not met the conditions for retirement. That in Yesufu v. Gov. of Edo State [2001] 13 NWLR (Pt. 731) 517, the Supreme Court in determining when a notice of resignation of appointment takes effect, held that – A notice of resignation of appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed. This is because there is absolute power to resign and no discretion to refuse to accept notice and it is not necessary for a person to whom the notice of resignation is addressed to reply that the resignation is accepted. Also referred is T.O.S. Benson v. Samuel Onitiri [1960] 5 FSC 60. The claimant then submitted that based on the above authority, the same principle is applicable to a notice of retirement in as much as the conditions of retirement have been met. Article 23 of Exhibit C i.e. the NJIC Agreement provides that on attaining the age of 60 years, an employee’s appointment will automatically terminate on grounds of retirement. The claimant testified at paragraphs 11, 12 and 13 of his further witness statement on oath dated 14th August 2012 that upon attaining 60 years in line with Article 23 of the NJIC Agreement, he tendered his notices of retirement. Upon delivery of the notices of retirement, the defendant never challenged the notices nor contended that the claimant had not fulfilled the conditions of retirement. The claimant submitted further that in line with the fore-going arguments his retirement took effect from the date his final notice of retirement i.e. Exhibit A was received by the defendant i.e. 31st August 2010 as evidenced by the receipt stamp of the defendant affixed to Exhibit A and this debunks the defendant’s allegation and submission that Exhibit A was backdated. It is the defendant’s contention that the claimant was dismissed via a purported letter of dismissal dated 29th April 2011. The claimant testified that he was never dismissed from employment and the purported letter of dismissal was never delivered to or received by the claimant, referring to paragraph 9 of the claimant’s witness statement on oath filed on 14th August 2012. During cross-examination, DW when asked if he was the one that delivered the letter of dismissal to the claimant testified that he was not the one. When asked who delivered the letter, he could not state the name of the person who delivered the letter. Also no evidence or acknowledgement of receipt of the purported letter or evidence of delivery of the letter either by post or otherwise was tendered to establish that the purported dismissal letter was ever delivered to the claimant because no such evidence exists factually as the purported letter of dismissal was never delivered. That in the Supreme Court case of Jombo v. PEFMB [2005] 14 NWLR (Pt. 945) 457, the appellant filed an action for unlawful termination of his employment by the 1st respondent. The 1st respondent thereafter issued the appellant with a dismissal letter in a bid to frustrate the appellant’s claims for damages or terminal benefits. Oguntade, JSC held as follows – What then can be the meaning of dismissing an employee from a relationship, which no longer exists arising from the earlier termination? The two Courts below should have seen that the latter dismissal of Plaintiff/Appellant as irrelevant and diversionary following his earlier termination. The behaviour of the 1st Defendant/Respondent shows bad faith and bad taste. What is however more worrying is the lame manner in which the Courts below threw up their hands in surrender thus allowing a litigant manipulates to its advantage the adjudicatory process. To the claimant then, based on the above authority, in view of the claimant’s earlier retirement, the purported letter of dismissal is irrelevant and deceptive and was issued in bad faith with the sole aim of manipulating the adjudicatory process to deny the claimant his terminal entitlements after repeated demands for same was made by the claimant. The claimant went on that flowing from his testimony and contrary to the defendant’s submission, the claimant had no understanding that the defendant intended to dismiss him in view of the fact that he had already retired from the defendant thus the issue of dismissal was unwarranted and at best preposterous. Furthermore, that what was held in the Supreme Court in TOS Benson v. Samuel Onitiri (supra) referred to by the defendant was that a notice of resignation delivered need not be accepted before it takes effect as same takes effect on the date it is received. Furthermore, that the case of the claimant is not that the purported letter of dismissal was not acknowledged but that the purported letter of dismissal was neither received nor delivered to the claimant. That the onus is on the defendant to establish not only that the dismissal letter was delivered to him but also to justify the dismissal, citing Olatunbosun v. NISER Council [1988] 3 NWLR (Pt. 80) 25 at 54 and SPDC Nig. Ltd v. Olarewaju [2002] 16 NWLR (Pt. 792) 38 CA (affirmed on appeal to the Supreme Court in [2008] 16 NWLR (Pt. 1118) 1), where it was held that an employer is not bound to give reasons for terminating the appointment of his employee but where he gives a reason the onus lies on him to establish that cause or give reason at the trial and to the satisfaction of the Court. To the claimant, the defendant, having raised different allegations (including allegations of fraud) amounting to gross misconduct as its reasons for the claimant’s purported dismissal, now has the onus to establish that the claimant was indeed guilty of the alleged misconduct to warrant his dismissal. The claimant continued that contrary to the defendant’s submission, the defendant woefully failed to establish that the claimant was validly dismissed. Firstly, the purported letter of dismissal itself is inadmissible and or no weight is to be attached to same in view of the fact that the maker was not called to testify and the testimony of DW on same is hearsay evidence which is also inadmissible. That assuming without conceding that the purported dismissal letter is admissible, the allegations of gross negligence, wilful misconduct, misappropriation, falsification and fraudulent conversion levelled against the claimant were not established by the defendant. That the dismissal letter refers to an internal and external audit investigation as the basis of the allegations yet the defendant failed to tender any internal investigation report before this Court and failed to lead any evidence as to the members of the investigation team and their report. That the purported external audit report tendered by the defendant is inadmissible and/or no weight is to be attached to same as the makers are unknown and it is an unsigned document. Furthermore, that contrary to the defendant’s submissions, a perusal of the external audit report shows that the allegations in the dismissal letter does not emanate from the findings of the Audit Report as there is nowhere in the Audit Report where the claimant was indicted for the allegations raised in the dismissal letter and the defendant did not tender any other financial report other than the purported Audit Report. That the onus is on an employer who dismisses an employee on grounds of negligence, incompetence or fraud to prove same or justify the dismissal and where he fails, the dismissal on those grounds is wrongful, referring to Ogunsanmi v. CF Furniture Ltd [1961] WNLR 327 at 328 and Abomeli v. Nig Railway Corporation [1995] 1 NWLR (Pt. 372) 451 at 472. The claimant continued that contrary to the submission of the defendant, he was denied fair hearing to fully address the issues raised in the Audit Report. That he testified before this Court that sequel to his retirement, he received the defendant’s letter dated 27th February 2011 informing him of the findings of the Internal Audit Report and requesting his response to the issues raised therein. The claimant stated that he responded to the said letter via a letter dated 4th March 2011 and took same personally to the defendant’s office; however, the receptionist of the defendant refused to acknowledge receipt of the letter on the instruction of one, Eyo Asuquo (a representative of Messrs R28 Limited (an investor in the defendant). The claimant insisted on acknowledgement and thereafter Mr. Eyo Asuquo signed for same. The acknowledged copy of the letter (although unsigned by the claimant) was tendered and marked as Exhibit L. The claimant then submitted that although no weight is to be attached to an unsigned document, this however does not affect the unassailable testimony of the claimant contained in his witness statement that he responded to the letter and same was acknowledged by one Eyo Asuquo after instructing the defendant’s receptionist not to acknowledge same. This fact is also evidenced by Mr Eyo Asuquo’s acknowledgement and signature on Exhibit L. Furthermore, that there is no evidence before this Court that the claimant was invited to face the defendant’s disciplinary committee at any point whatsoever to defend himself against the allegations raised against him; thus the claimant was denied fair hearing which is his constitutional right. The claimant went on that in view of his position as the Company Secretary of the defendant, the defendant cannot lawfully dismiss him without fulfilling the provisions of section 296(2) of the Companies and Allied Matters Act (CAMA). Section 296 of CAMA provides as follows – Where it is intended to remove the secretary of a public company, the board of directors shall give him notice – a) stating that it is intended to remove him; b) setting out the grounds on which it is intended to remove him; c) giving him a period not less than seven working days within which to make his defence; and d) giving him an option to resign his office within a period of seven working days. To the claimant, there is no evidence before this Court that the defendant followed the above laid down statutory provision; thus the purported dismissal is unlawful, invalid and of no legal effect and same should be declared so and set aside by this Court. The claimant continued that the defendant contended that the defendant in its pleadings stated copiously the gross misconduct which occasioned the dismissal. However, that it is trite law that pleadings do not amount to evidence and where there is no admissible evidence backing up the allegations; those allegations are mere bare assertions and remain unproved. The claimant went on that contrary to the defendant’s submission, on the face of Exhibit D5, there is nothing contained therein to suggest or show that the claimant unilaterally increased his salary; thus the defendant failed to establish its allegation of unilateral increment of salary as the claimant testified that all his salaries were approved. Also, that contrary to the defendant’s submission, it is untrue that Exhibit D7 corroborates the allegation that the defendant (sic) overpaid himself for cost of visa and ticket fare. On the face of Exhibit D7, 2 signatures appear on same, one of which is that of the Project Controller which clearly shows that the monies were approved in line with the claimant’s testimony in paragraphs 27 and 38 of the claimant’s further witness statement on oath filed on 14th August 2012. To the claimant, the defendant misrepresented facts to this Court by stating that the claimant failed to attach his letter to the defendant requesting for retirement benefits dated 2nd March 2009 and that no such letter was served on the defendant. The reference letter i.e. claimant’s letter dated 2nd March 2009 was marked and admitted in evidence as Exhibit K and on the face of Exhibit K, the receipt stamp of the defendant is affixed thereon evidencing the fact that the defendant received the letter on 2nd March 2009. The defendant also contended that the claimant was ‘in consistent disregard’ of the instructions of the defendant and failed to adhere to the dictates of the defendant; yet to the claimant there is not one iota of evidence before this Court establishing any instruction or dictate of the defendant that was disregarded or not adhered to by the claimant. To the claimant, the distinction made by the defendant between unlawful and wrongful dismissal is not relevant in this case as the claimant is not seeking for a reinstatement to his former position but for his terminal benefits. That if this Court holds that the defendant has not established factually that the claimant was dismissed and that the claimant is guilty of the allegations levelled against him as the reason for misconduct via credible evidence, then the dismissal is not valid and will be declared as such and the claimant will be entitled to his terminal entitlements. On issue 2 i.e. whether the claimant has established based on balance of probabilities his claim for terminal entitlements, took each of the claims and addressed same. As regards the claim for arrears of salary of N2,338,245.00 for the months of August 2009 to February 2010 and arrears of salary of N1,525,150.00 for the months of April 2010 to August 2010 totalling the sum of N3,863,395.00, the claimant submitted that it is not disputed that he was an employee of the defendant at the material time. That it has also been admitted by the defendant in paragraph 21 of the amended statement of defence and paragraph 24 of the defendant’s witness statement that the defendant owed all the staff of the defendant salaries for the above stated period. The claimant testified before this Court that his monthly salary at the relevant time was the sum of N359,730.00 and that in August 2009, the defendant paid the sum of N179,865.00 as part of the claimant’s salary leaving an outstanding sum of N179,865.00 and in April 2010, the defendant paid the sum of N273,500.00 as part of his salary leaving an outstanding sum of N86,230.00 unpaid and gave detailed computation on how he arrived at the total amount of N3,863,395.00 as arrears of salaries owed to him by the defendant, referring to paragraphs 7 to 12 of the claimant’s witness statement filed on 18th July 2012. In further support of his claim, the claimant submitted before this Court Exhibit D (a letter written by the claimant to the defendant on 30th September 2010 and received on 4th October 2010 by the defendant) attaching a 2-page document containing computation of outstanding salaries of the defendant’s staff which included computation of the claimant’s outstanding salary of N3,863,395.00 as well. The claimant also submitted Exhibit F (a letter dated 1st December 2010 written by the claimant’s solicitor’s Ubani & Co to the defendant) attaching a Memo dated 13th September 2010 from the claimant to the defendant and received by the defendant on 13th September 2010 which also detailed the outstanding salary owed to the claimant as N2,338,245.00 for the months of August 2009 to February 2010 and N1,525,150.00 for the months of April 2010 to August 2010. The defendant duly received Exhibit D and F and did not challenge the computation at the material time. That for the first time, the defendant made a failed attempt to challenge the claimant’s computation by alleging in one breath that the claimant’s monthly salary is the sum of N197,600.00 while admitting in another breath at paragraph 29 of his defence witness statement that the total salary arrears is N3,863,395.00. However, that the defendant is only liable to pay 75% of same based on an agreement between the investors and staff of Arbico. For the purpose of clarity the claimant does not agree that the defendant is only liable to pay 75% of the sum. That the defendant in a desperate attempt to defeat the claimant’s claim without any justifiable basis alleged for the very first time in this suit that the claimant unilaterally increased his salary in July 2008. That there was no evidence led by the defendant to show how the defendant discovered the alleged unilateral increment or disciplinary steps taken by the defendant since July 2008 when it supposedly discovered the unilateral increment. In fact, that there can be no such evidence as this allegation is clearly false, unsubstantiated and an afterthought. That no prudent or reasonable employer will discover such and take no disciplinary steps or measure. That this goes further to show that the allegations of the defendant can only be false. Furthermore, that the claimant testified at paragraph 27 of his witness statement on oath filed on 14th August 2012 that his salaries and all increment were approved by the defendant’s Managing Director and Executive Director and his testimony can only be impeached by the Managing Director and Executive Director of the defendant which the defendant failed to call as a witness. Therefore, the claimant’s testimony is unassailable. Also the Audit Report i.e. Exhibit D3 which the defendant seeks to rely on as revealing unilateral increment of salaries by the claimant is inadmissible and or no weight is to be attached to same. The claimant reiterated the submissions on inadmissibility of Exhibit D3. However, that assuming without conceding that same is admissible, a perusal of Exhibit D3 shows that there is nowhere in the Audit Report where the claimant was indicted for unilaterally increasing his salary. To the claimant, of utmost importance is the fact that the testimony of the defence witness contained in his witness statement, in his failed attempt to challenge the testimony of the claimant, is hearsay evidence and inadmissible thus the claimant’s testimony is uncontroverted and unchallenged and it is to be treated as established. The claimant submitted then that on the balance of probabilities, the claimant’s testimony and exhibits establish that the defendant owes him arrears of salary amounting to a total sum of N3,863,395.00. Assuming further without conceding that the claimant has not established that the salary arrears due to him from the defendant is the sum of N3,863,395.00, the claimant submitted that the defendant has already admitted in paragraph 39 of its witness statement that outstanding arrears of salary due to the claimant is the sum of N2,897,546.25 and the claimant is thus entitled to payment of this sum. The claimant submitted that this Court has the powers to grant a lesser claim than that which was sought, referring to Nwagu v. Fadipe [2012] 13 NWLR (Pt. 1318) 547, Ezeonwu v. Onyechi [1996] LPELR SC.275/1991 at 25; [1996] 3 NWLR (Pt. 438) at 520 – 521, Ekpenyong & ors v. Nyong & ors [1975] 2 SC 71 at 80 – 81, FBN v. Oniyangi [2000] 6 NWLR (Pt. 661) 497, Anyabosi v. RT Briscoe Nig. Ltd [1987] 6 SCNJ 9; [1987] 3 NWLR (Pt. 59) 84 and Benson Okoebor & anor v. Eyobo Engineering Services (Nig.) Ltd & ors [1991] 4 NWLR (Pt. 187) 553. The claimant also referred the Court to section 14 of the National Industrial Court (NIC) Act 2006, which empowers this Court to grant any remedy in the interest of justice. On the claim for leave pay and leave allowance for the years 2008 to 2010 amounting to the sum of N 994,175.00, the claimant contended that he testified before this Court that he is entitled to 2 months’ leave with a leave allowance of 15% of his annual basic salary and when he does not take his leave, he is also entitled to an additional allowance i.e. leave pay which is his basic salary for the period of leave not taken. The claimant further testified that the defendant owes him arrears of leave pay and allowance for the years 2008 to 2010 totalling the sum of N994,175.00, referring to paragraphs 13 to 19 of the claimant’s witness statement on oath filed on 18th July 2012. That the detailed computation of the sum was also contained in the Memo of 13th September 2010 attached to Exhibit F and the 1st page of the document attached to Exhibit D, which were not challenged at the material time by the defendant. The claimant went on that assuming without conceding that he has not established that the arrears of leave pay and allowance arrears due to him from the defendant is the sum of N994,175.00, the defendant admitted in paragraph 27 of its amended defence dated 24th May 2005 and paragraph 30 of its witness statement filed on 27th May 2013 that the claimant is entitled to the sum of N148,200.00 as his annual leave allowance. Consequently, the claimant is entitled to be paid leave allowance for the years 2008, 2009 and 2010 at the rate of N148,200.00 for each year amounting to a total of N444,600.00 based on the defendant’s own admission. On the claim for retirement benefits amounting to the sum of N14,562,942.47, the claimant contended that he testified before this Court that he is entitled to retirement benefit at the rate of 23/4 months’ pay (which include basic salary, rent subsidy/house allowance and transport allowance for each year of service with the defendant and that he was an employee of the defendant for 331/2 years; thus he is entitled to a total sum of N21,644,768.75. That he further testified that the defendant paid him the sum of N6,000,000.00; he also took a loan of N1,081,826.28 from the defendant and the loan is to be deducted from his retirement benefit, leaving an outstanding of N14,562,942.47 due to him. To the claimant, assuming without conceding that he has not established that retirement benefit due to him from the defendant is the sum of N14,562,942.47, the defendant admitted in paragraph 35 of its amended defence dated 24th May 2005 and paragraph 38 of its witness statement filed on 27th May 2013 that the claimant’s total retirement benefit is the sum of N14,894,100.00 (calculated at 23/4 months’ basic salary i.e. N444,600.00 for each 331/2 years of service). That with the sum of N6,000,000.00 paid to the claimant and the loan of N1,081,826.28 deducted from this sum, an outstanding sum of N7,812,273.72 is left unpaid. The claimant is thus entitled to the sum of N7,812,273.72 based on the defendant’s admission. Regarding issue 3 i.e. whether Exhibit D6 referred to as “Final Agreement on the meeting held on 27th August 2010 between New Investors, Management and Union Representatives and Workers” is binding on the claimant, the claimant contended that he testified that Exhibit D6 is not an agreement between the claimant and the defendant and that he only signed Exhibit D6 as a Management representative of the defendant and not in his personal capacity and thus Exhibit D6 is not binding on him. That on the face of Exhibit D6, it appears to be an agreement executed by (i) the Investors in Arbico (the defendant), (ii) the Management of the defendant, (iii) some union representatives. That it is trite law that a contract executed by an agent of a disclosed principal will be binding on the disclosed principal and the agent cannot be held liable for same, citing Carlen v. University of Jos [1994] 1 NWLR (Pt. 323) 631 and Okafor v. Ezenwa [2002] 13 NWLR (Pt. 784) 319. Furthermore, that in order to create a binding contract, the parties must express their agreement in a form which is sufficiently certain for the courts to enforce, referring to Orient Bank v. Bilante International Ltd [1997] 8 NWLR (Pt. 515) 37. That it is also important to note that before any agreement can come into existence in law, there must be an unmistaken and precise offer and an unconditional acceptance of the terms initially agreed upon by the parties thereto, referring to Odutola v. Papersack (Nig) Ltd [2006] 18 NWLR (Pt. 1012) 470, Ezenwa v. Ekong [1999] 11 NWLR (Pt. 625) 55 and Sona Breweries Plc v. Peters [2005] 1 NWLR (Pt. 908) 478. The claimant further submitted that Exhibit D6 is in itself ambiguous, the parties are uncertain and it does not satisfy the above requirements of a valid and enforceable contract. That where the terms of a contract are vague or uncertain it would be difficult for a Court to enforce it as it will be an invalid agreement, referring to Odutola v. Papersack (Nig.) Ltd (supra). That the claimant is not a party to Exhibit D6 and same cannot be enforced against him, urging the Court to so hold. To the claimant, it is trite law that a debt can only be discharged and otherwise than by the actual performance of the obligation itself by accord and satisfaction. That a promise by the debtor to pay only part of the debt provides no consideration for the accord, as it is merely a promise to perform part of the existing duty owed to the creditor. The actual payment is no satisfaction under the rule in Pinnel’s case (1602) 5 Co. Rep. 117a, the effect of which is that “payment of a lesser sum on the day in satisfaction of a greater sum cannot be any satisfaction for the whole”, referring to Grayshot Ent. Ltd v. Hon. Minister of Agriculture Federal Republic of Nigeria and ors [2002] 9 NWLR (Pt. 771) 1 and Foakes v. Beer (1884) 9 App. Cas. 605. The claimant continued that assuming without conceding that Exhibit D6 is a valid contract executed between the claimant and the defendant, it was agreed on the face of Exhibit D6 that payment of entitlement is to commence on 30th August 2010 and end on 3rd September 2010. The claimant then submitted that where parties to an agreement or contract have by their mutual agreement provided for the time for the satisfaction of a condition, time becomes of the essence of the agreement and thus, any breach of that condition has the effect of putting an end to the agreement or contract, referring to Niger Insurance v. Abed Brothers Ltd [1976] 7 SC 35, Leyland (Nig.) Ltd v. Dizengoff W.A. (Nig.) Ltd [1990] 2 NWLR (Pt. 134) 610 and Gamla (Nig.) Ltd v. New (Nig.) Bank Plc [1999] 12 NWLR (Pt. 631) 408 at 409. The claimant submitted further that failure of the defendant to pay him his outstanding entitlements by 3rd September 2010 is a breach and repudiation by the defendant of the agreement to pay 40% of the claimant’s terminal entitlement and 75% of his outstanding salary. That he is, therefore, at liberty to treat the agreement as repudiated and terminated by the defendant and claim for his full terminal entitlement. On issue 4 i.e. whether the unsubstantiated allegation of financial crime made against the claimant can operate as a bar to the claimant’s right to his terminal entitlements, the claimant contended that fraud and forgery is a criminal offence and must be proved beyond reasonable doubt. That the onus of proof rests on the defendant to prove beyond reasonable doubt the allegations of forgery and fraudulent appropriation levelled against the claimant in its statement of defence. That the mere belated unsubstantiated assertion by the defendant does not reach the level of proof required, referring to section 135(1) and (2) of the Evidence Act 2011, Nwobodo v. Onoh & ors [1983] NSCC 470 at 472, Akpunonu v. Beakart Overseas [2000] 7 SC (Pt. 1) 49 and Ugbo v. Aburime [1993] 2 NWLR (Pt. 273) 101 SC. To the claimant, the defendant alleged that the claimant diverted the sum of N27.5 million from various project accounts. However, the defendant failed to lead any evidence whatsoever of the source of the said sum, when and how the monies were received by Arbico, where the monies were kept, where the monies were diverted to and how the claimant diverted the said sum. That the defendant failed to submit any documentary evidence such as books of accounts showing the existence of the said sum, how the alleged diversion was discovered if at all there was a diversion. The claimant then submitted that the only logical conclusion to be drawn is that no such evidence exists as this allegation is clearly an afterthought with the malicious intent to deprive the claimant of his hard earned terminal entitlements. Again, that the defendant alleged that the claimant forged a letter dated 31st August 2010, yet there was no single shred of evidence led to establish this. That there was no forensic report or Police report establishing the alleged forgery. That this allegation is clear falsehood. The claimant accordingly submitted that bare assertions and baseless allegations without any proof of same cannot be a ground for the defendant to hold on to the terminal benefits of the claimant. That it is trite law that an accused is presumed innocent until proven guilty by a Court of law. For the defendant to assume the role of a judge and deny the claimant his entitlements is illegal and contrary to the position of the law and is tantamount to usurping the powers of the Court and adjudging the claimant guilty of a crime without due prosecution for same. Furthermore, that the defendant does not have a counter-claim before this Court and consequently is not in a position to hold on to the terminal entitlements of the claimant as set-off for an allegation of financial misappropriation that the defendant has blatantly failed to prove. Regarding issue 5 i.e. whether the claimant is entitled to post-judgment interest on any judgment sum awarded in his favour, the claimant cited AIB Ltd v. IDS Ltd [2012] 17 NWLR (Pt. 1328) 1 SC, which held that post-judgment interest is guided by the appropriate trial Court’s Civil Procedure Rules. That Order 21 Rule 4 of the National Industrial Court Rules 2007 provides: “The Court at the time of delivering the judgment or making the order may direct the time within which payment is to be made or other act is to be done and may order interest at a rate not less than 10 per cent per annum to be paid upon any judgment”. In conclusion, the claimant urged the Court to, on the preponderance of evidence and arguments canvassed, grant him his claims in their entirety. The defendant reacted by filing a reply on points of law. To the defendant, the claimant had attempted to discredit the testimony of the defendant’s witness and also relied on authorities to show the Court that the documents tendered by the defendant constitute hearsay evidence and should be discountenanced by the Court. The defendant then submitted that the arguments as contained in the written address of the claimant are based on pure conjecture and a lack of understanding of the circumstances surrounding the present case. The defendant urged the Court take into consideration the defendant’s counter argument on points of law as indicated below. To the defendant, DW, Mr. Nkwocha, was called as a witness/representative of the defendant, a Limited Liability Company within his capacity as an accountant employed by the defendant and with the necessary knowledge of the facts of this case. The defendant then referred the Court to section 83(2)(a) of the Evidence Act 2011 which states: “in any proceeding, the Court may at any stage of the proceeding, if having regard to all circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without any such order having been made admit such a statement in evidence notwithstanding that the maker of the statement is available but is not called as a witness. Here, the defendant’s argument is that DW, Mr. Charles Nkwocha, though not the maker of the documents tendered by the defendant is the representative of the defendant and is given the mandate to represent the defendant’s interest. It is trite that a company may elect any of its officers to be a witness in Court on its behalf, citing Kate Enterprises Limited v. Daewoo Nigeria Limited [1985] 2 NWLR (Pt. 5) 127 and Ogbaji v. Arewa Textiles Plc [2000] 11 NWLR (Pt. 678) 337. That it is also worthy of note that during the trial of this suit, the Court in its own discretion and without making any express order, admitted into evidence all the documents tendered before it in this suit in line with section 83(2)(a) of the Evidence Act 2011. The defendant submitted further that by virtue of section 12(2)(a) and (b) of the National Industrial Court Act 2006, which states that the Court may subject to this Act and any rules made there under, regulate its procedure and proceedings as it thinks fit and shall be bound by the Evidence Act but may depart from it in the interest of justice. To the defendant, therefore, the provision of the Evidence Act in section 83(1) is not cast in stone, the law has indeed provided an exception in section 83(2) (a) of the Evidence Act. The defendant went on that the objection to admissibility is also being brought after the documents have already been admitted as exhibits. That it is a cardinal rule of evidence and of practice that an objection to the admissibility of a document sought to be tendered as exhibit by a party is raised when the document is offered in evidence. That where objection has not been raised by the opposing party to the reception in evidence of a document, the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission. On the strength of the above arguments, the defendant urged the Court to hold that the evidence of DW is admissible. The claimant had argued that the documents tendered by the defendant should be declared inadmissible by the Court. On admissibility of documents, that the Court held in Musa Abubakar v. EI Chuks SC184/2003 as follows: Admissibility is a rule of evidence and it is based on relevancy. See Sadau v. The State [1968] 1 All NLR 124; Oguonzee v. The State [1997] 8 NWLR (Pt. 518) 566. In determining the admissibility of evidence, the Court will not consider how it was obtained; rather the Court will take into consideration whether what is admitted is relevant to the issues being tried. See also Igbinovia v. The State [1981] 2 SC 5. In Elias v. Disu [1962] 1 All NLR 214, the Court held that in determining admissibility of evidence, ‘it is the relevancy of the evidence that is important and not how the evidence was obtained. The defendant continued that a document is admissible in evidence if it is relevant to the facts in issue and admissible in law. That the converse position is also the law; and it is that a document which is irrelevant to the facts in issue is not admissible. That documents which are tendered to establish facts pleaded cannot be rejected on the ground of irrelevancy in so far as they confirm the facts pleaded, citing Oyetunji v. Akgnni [1986] 5 NWLR (Pt. 42) 461. In other words, a document which is consistent with the pleadings is admissible, if the document is admissible in law. To the defendant, the fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial judge. It is not automatic. Admissibility of a document is one thing and the weight the Court will attach to it is another. The weight the Court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence. The defendant went on that relevancy and weight are in quite distinct compartments in our law of Evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. That in the order of human action or activity, in the area of the law of Evidence, relevancy comes before weight. Relevancy, which propels admissibility, is invoked by the trial judge immediately the document is tendered. At that stage, the judge applies sections 6, 7, 8 and other relevant provisions of the Evidence Act to determine the relevance or otherwise of the document tendered. If the document is relevant, the judge admits it, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado. Weigh comes in after the document has been admitted. This is at the stage of writing the judgment or ruling as the case may be. At that stage, the judge is involved in the evaluation of the evidence vis-a-vis the document admitted. While logic is the determinant of admissibility and relevancy, weight is a matter of law with some taint of facts. To the defendant, the argument is simple that the documents tendered by the defendant are admissible at law, as the Court in this instance permitted the documents to be tendered in its capacity and jurisdictional power as expressed clearly in section 12 of the National Industrial Court Act 2006. That the issue of admissibility should not even have arisen; and on the issue of the weight the Court will attach to such documents, that will be determined by the circumstances of the case my lord. In any case, that the importance of documentary evidence in itself is to establish the truth or otherwise in the facts pleaded before the Court. It does not lie in the mouth of the claimant to direct the Court to attach no weight to the evidence produced by the defendant. That it is also important to note that section 83(2) of the Evidence Act, 2011 puts the calling of the maker of a document as a witness at the discretion of the Court and failure to call the maker does not vitiate the admissibility of the document, citing Abadom v. State [1997] 1 NWLR (Pt. 479) 24. The claimant had also argued that the evidence of the defendant is hearsay evidence. It is the submission of the defendant that FRN v. Usman [2012] 8 NWLR (Pt. 1301) 141 at 160 does not apply at all in this case because the cited case is a criminal matter where a confessional statement interpreted by an interpreter was tendered but the interpreter was not called as a witness and the confessional statement was held to be hearsay evidence. That the substantive case does not qualify as hearsay evidence in anyway. That DW as earlier stated has the mandate of the defendant to be a witness on its behalf being a Limited Liability Company, referring to Kate Enterprises Limited v. Daewoo Nigeria Limited (supra). On the issue of the documents tendered by the defendant, the defendant submitted that the maker of a document need not be called as a witness, referring the Court to the case of Igbodim & ors v. Obianke & ors [1976] 10 SC 179 where the Court observed that “it is settled law that documentary evidence can be admitted in court proceeding through any witness by consent or without objection, notwithstanding that their makers were available and not called as witnesses”. Also referred is UNIC v. UNIC Ltd [1993] 3 NWLR (Pt. 593) 17 at 24. On the issue of Exhibits D10 and D11, which are petitions written by Oluwadare A. Kolawole, the defendant submitted that the documents are admissible on the strength of the provision of section 12 of the National Industrial Act, 2007. Also the defendant referred the Court to paragraph 39 of the initial statement of defence dated 3rd August 2012 filed on behalf of the defendant wherein the defendant had stated that the claimant had been reported to the appropriate authorities. That the petition to the Economic and Financial Crimes Commission and the Special Fraud Unit written by the defendant’s counsel was not the first complaint written and as such cannot be classified as documents made at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. The maker of the document is also not an interested party but a counsel carrying out his professional duties. That assuming without conceding that Exhibits D10 and D11 are documents made in anticipation of proceedings, they ought to be admitted by the Court as they do not go against the law of admissibility but rather the weight to be attached to it. On the issue of Exhibit D6 which is the Final Agreement on the meeting held on 27th August 2010 between New investors, Management and Union Representatives and Workers being binding on the claimant, the defendant reiterated that it is binding on the claimant for the simple logical reason that the claimant is privy to the agreement without exception. That the argument that he signed as a representative of the defendant is not tenable. The claimant was not only a staff of the defendant, he was also present at the meeting and appended his signature without coercion. The attempt to use authorities on agent and disclosed principal does not apply at all in this suit and is, therefore, irrelevant. More so, the final agreement is binding on all the staff of the defendant company including the claimant. In conclusion, the defendant urged the Court to hold that the claimant was dismissed effectively from the employment of the defendant and the benefits to be paid to him are based only on the consideration that he had spent long years of service to the defendant. However, that the benefits should be calculated based on Exhibit D6 having in mind the various monies the claimant used to his advantage while in office to the detriment of the defendant. That the claim of the claimant that the defendant has been unable to prove its case is pure conjecture and should be discountenanced by this Court. I heard learned counsel and considered all the processes filed in this suit. In considering the merit of the case, I need to point out that the claimant abandoned relief (4), which is for an order directing payment of Legal Practitioner’s fee arising as a result of this proceeding as follows: (a) Initial deposit on Professional fee of N250,000.00; and (b) 7.5% of the sums awarded by this Honourable Court as entitlements due to the claimant. Relief (4) is accordingly dismissed. That said, I need to resolve the issue of the admissibility and hence evidential value of Exhibits D3, D4, L, D10, D11 and D12. Exhibit D3 is an audit report titled “Arbico Plc Management Letter for 2007, 2008, & 2009 Audit”. It bears the date “October 2010”, and emanates from Remi Oyekola & Co. It is not signed by any one. By Edilco (Nig.) Ltd v. UBA Plc [2000] FWLR (Pt. 21) 729, an unsigned but certified true copy of a document will not be conferred with any evidential value. See also, Esther Ogbodu v. Global Fleet Oil & Gas Ltd & anor unreported Suit No. NICN/LA/32/2012, the judgment of which was delivered on 5th December 2014, where this Court declined to give any evidential value to a number of unsigned documents. Given these authorities, therefore, Exhibit D3 has no evidential value for purposes of this judgment; and I so find and hold. It shall accordingly be discountenanced. Exhibit D4 dated 27th February 2011 and addressed to the claimant is hinged on Exhibit D3. Based on Exhibit D3, Exhibit D4 demanded of the claimant to respond to the issues raised in Exhibit D3 as to the financial lapses noted in the said Exhibit D3. Since Exhibit D3 is hereby discountenanced, it means that the basis of Exhibit D4 is faulty and so is of no evidential value; and I so find and hold. Exhibit L is a letter from the claimant to the defendant. It is dated 4th March 2011. Although it is not signed, it is, however, marked received on 08/03/2011 by the recipient. This fact of receipt suffices to give it evidential value; and I so find and hold. Exhibits D10 and D12 (similarly worded) are letters both dated 12th September 2012 from solicitors of the defendant to the EFCC and the Commissioner of Police Special Fraud unit, Ikoyi, praying both the EFCC and the Police to investigate the claimant for his criminal conduct in order to bring him to justice. Exhibit D11 is the acknowledgment by the EFCC of the receipt of Exhibit D10 (there is no corresponding acknowledgement of Exhibit D12 by the Police). In Exhibit D10 issues as to the financial lapses highlighted in Exhibit D3 were raised as the basis for the call on EFCC to investigate the claimant. Surprisingly, although Exhibit D3 has the date “October 2010”, Exhibit D10 talks of the defendant discovering “amongst a lot of discrepancies that Arbico Plc’s management audit account was not prepared for three years and an external auditor was appointed for that purposes, with the claimant refusing to provided support for or cooperate with the external auditors and for which in September 2010 the claimant was directed to go on compulsory leave to enable the external auditors to properly and impartially investigate the financial position of the company vis-à-vis the claimant’s position as the Financial Controller of the defendant”. The instant suit was filed in this Court on 18th July 2012. Exhibits D10 and D12 were written on 12th September 2012. On the issue of admissibility of both Exhibits D10, D11 and D12, the defendant relied on section 12 of the NIC Act 2006 and prayed the Court to admit the said exhibits. Section 83(3) of the Evidence Act 2011 provides that “nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”. Part of the case of the defendant in this case is that it lawfully dismissed the claimant; and the basis of the dismissal are the financial infractions listed in Exhibit D3 (which are reiterated in Exhibit D10) and for which the EFCC was asked to investigate the claimant. Exhibits D10 and D12 were written by solicitors of the defendant as agent of the defendant. That makes Exhibits D10 and D12 letters written by the defendant itself. How can the defendant now argue that Exhibits D10, D11 and D12 were not issued when the instant case is pending? It is my finding and holding that Exhibits D10 and D12 are documents made by the defendant (who is an interested party in this suit) at a time when this suit is pending. By extension, Exhibit D11 was also issued while this case is still pending. Accordingly, Exhibits D10, D11 and D12 all offend section 83(3) of the Evidence Act 2011 and so they would be discountenanced for purposes of this judgment. In any event, the financial infractions talked about in Exhibits D10 and D12 relate to the period prior to and up to 2010. There is no evidence before the Court that the defendant deemed it fit to report to the EFCC or the Police anytime before the 12th September 2012 date it sent Exhibits D10 and D12. The interest of justice will not permit this Court to gloss over section 83(3) of the Evidence Act 2011 and call to aid section 12 of the NIC Act 2006 as prayed by the defendant. The said exhibits being generated when this suit is pending were meant to overreach the claimant; and I so find and hold. The argument of the defendant in that regard accordingly fails and as such is hereby discountenanced. The case of the claimant is that after 33 and half years of service in the employment of the defendant, he retired and so needs to be paid his retirement as well as other benefits. In answer the defendant asserts that the claimant’s case is that he retired on 31st August 2010 before the defendant dismissed him. To the defendant, the evidence before this Court is a backdated letter of retirement (Exhibit A) invented by the claimant so as to claim retirement benefits from the defendant. That the defendant has proved before this Court that the claimant was served with a letter of compulsory leave in September 2010 (Exhibit D2) because of his reluctance to co¬operate with the external auditors who were appointed to audit the defendant’s accounts. That the claimant’s purported retirement was an afterthought which was premeditated to make it appear as though he had applied for his retirement before the letter of dismissal was handed over to him. That the claimant was well aware of the goings on in the company and was quick to take cover conveniently under the guise of a retirement, urging the Court to so find and hold. The defendant as such argued that the claimant was validly dismissed and so is not entitled to any benefit; but that even if he was not validly dismissed his entitlements can only be calculated on the basis of Exhibit D6, the final agreement on the meeting held on the 27th August 2010 between new investors, management and union representatives and workers, which put the entitlements of senior and management staff at 40% of entitlement and outstanding salaries of senior and management staff at 75%. Since everything about this case depends on the issue whether the claimant was dismissed or he retired, the key issue before the Court is accordingly the dismissal/retirement status of the claimant. In other words, did the claimant retire (in which event when did he retire) or was he dismissed by the defendant? Is the defendant right in arguing that Exhibit A is a backdated letter of retirement invented by the claimant so as to claim retirement benefits from the defendant and that the claimant’s purported retirement was an afterthought which was premeditated to make it appear as though he had applied for his retirement before the letter of dismissal was handed over to him? I took a closer look at Exhibit A. It is dated 31st August 2010 and addressed to the Managing Director of the defendant company. It bears a stamp of receipt of the letter by the defendant also dated 31st August 2010. How then can this be a backdated letter? What proof did the defendant give this Court to show the letter is backdated? None! What proof did the defendant give this Court to show that the letter was an afterthought on the part of the claimant? Again none! Under cross-examination, DW testified that the claimant submitted a backdated letter of resignation. When asked whether he was the one who received the backdated letter, he answered in the negative. When also asked when the backdated letter was received, he answered that he cannot remember when the backdated letter of resignation was received. All of this cannot be evidence that substantiate the claims of the defendant. Indeed, I do not know what counsel for the defendant was hoping to achieve with their unsubstantiated arguments. I do not think it lies with counsel to cook up unsubstantiated arguments in the name of advocacy just so that a case is won for a client. It is accordingly my finding and holding that Exhibit A is not a backdated letter; neither is it an afterthought on the part of the claimant. However, the question still remains whether the claimant retired (if so when) or he was dismissed. Exhibit A is dated 31st August 2010 and is titled “Final Notice of Retirement”. It recites an earlier notice of retirement given as far back as December 1, 2008 with a terminal date of February 2009 (see Exhibit J dated December 1, 2008, the receipt of which was acknowledged on same date), which was extended by the claimant to August 2009 to enable the accounts of 2007 and 2008 to be completed (see Exhibit K dated 2nd March 2009, the receipt of which was acknowledged on same date). This could not be and hence Exhibit A, the final notice. Exhibit A ends with the claimant thanking the defendant for the opportunity given to him to serve. Exhibit A also made a demand for the payment of the claimant’s retirement benefit and arrears of salary totaling N19,420,512.47. Exhibit B dated 13th September 2010 (and received by the defendant on same date) and titled “Re: Final Retirement Notice – Benefit Calculation” is the breakdown of the calculation of the retirement and end of service benefits of the claimant. Exhibit B puts the terminal date of employment of the claimant at 31/8/2010. Exhibit D2 dated September 27, 2010 is a letter from the defendant to the claimant asking the claimant to proceed on compulsory leave because of ongoing restructuring in the company. It asked the claimant to handover to Charles Nkwocha, DW in this suit; and ends with the statement that “management will ensure to communicate its final decision before the expiration of your compulsory leave”. In reaction, the claimant wrote Exhibit D dated 30th September 2010 to the defendant (receipt of which was acknowledged on 4 Oct 2010). In Exhibit D, the claimant expressed surprise at being asked to proceed on compulsory leave and then in the second paragraph asked the defendant to note that he “had already retired from the company effective from 1st March 2009 and as such the issue of myself proceeding on compulsory leave does not arise”. Exhibit E dated 8th November 2010 (receipt of which was acknowledged same date) is a letter from the claimant to the defendant wherein he complained of not hearing from the defendant since it issued Exhibit D2. Exhibit D4 dated 27th February 2011, a letter from the defendant to the claimant which I earlier faulted and discountenanced, demanded of the claimant to respond to the issues raised as to the financial lapses noted in the said Exhibit D3. The other thing about Exhibit D4 is that it had an acknowledgement of receipt in the following words: “Acknowledge receipt of this page only”. In other words, only the first page of Exhibit D4 was received. All of this merely goes to reinforce the Court’s stance to discountenance it as evidence in this suit. However, the claimant still reacted to Exhibit D4 vide Exhibit L. Aside from the reaction of the claimant vide Exhibit L, the claimant had written Exhibits M and M1 raising some of the issues complained in Exhibit D4. It is surprising, therefore, that the defendant would still make issues out of them and used them as a basis of dismissing the claimant. If there is a party in this suit that is churning out documents as an afterthought, then it must be the defendant. Whether it is Exhibit A or J or K, the thing is that they were all written and acknowledged received by the defendant before Exhibit D1 dated April 29, 2011, by which the defendant summarily dismissed the claimant for financial infractions it had all along accused the claimant of and for which the claimant was asked to respond. The claimant argued that he was not even served Exhibit D1; and there is no verifiable proof from the defendant that the claimant was so served. The question still remains: can an employer refuse to accept a letter of retirement and then subsequently dismiss the employee? In Captain Patrick Agbonlahor v. Aero Contractors Company of Nigeria Limited unreported Suit No. NICN/PHC/24/2013, the judgment of which was delivered in Ibadan on December 4, 2014, Hon. Justice FI Kola-Olalere reviewed some of the authorities dealing with the question of resignation, namely: E. O. Ejitagha v. Psychiatric Hospital Management Board [1995] 2 NWLR 189 at 199, which held that it is also a well-known practice that only an employee can elect to retire voluntarily at age 45 or compulsorily at age 60; Hon. Kola Adefemi & anor. v. Muyiwa Emmanuel Abegunde & ors [2004] 1 NWLR at 27 – 28, which applied Benson v. Onitiri [1960] SCNLR 177 at 189 – 190: [1960] 5 FSC 69 to the effect that resignation dates from the date notice was received and there is absolute power to resign and no discretion to refuse to accept notice; and then concluded that an employee is deemed to have properly resigned from his employment if he gave the required notice of the resignation in line with his terms and conditions of employment. Added to the authorities cited above is WAEC v. Oshionebo [2006] 12 NWLR (Pt. 994) 258 CA, where it was held that a notice of resignation is effective not from the date of the letter, or from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent. The case went on that tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. However, giving notice of retirement carries with it the right to be paid a pension or gratuity, but it does not confer the right to withdraw from the service immediately and automatically. From all these authorities, the defendant has no right to reject the letter(s) of retirement of the claimant. At least Benson v. Onitiri (and as applied by the Court of Appeal) held that “there is absolute power to resign and no discretion to refuse to accept notice”. A fortiori, there is absolute right to retire and no discretion to refuse to accept the notice to retire. The only thing to note is that by WAEC v. Oshionebo giving notice of retirement carries with it the right to be paid a pension or gratuity, but it does not confer the right to withdraw from the service immediately and automatically. That being the case, the only question left to be answered is when the claimant actually retired. By the combined effect of Exhibits A and B, the claimant put his terminal date of employment as 31st August 2010, the date of Exhibit A. In other words, the retirement was with immediate effect. This goes contrary to WAEC v. Oshionebo, which held that a notice of retirement does not confer the right to withdraw from service immediately and automatically. However, by Exhibit D, the claimant asked the defendant to note that he retired as from 1st March 2009. It is in this regard that Exhibits J and K were earlier sent to the defendant which acknowledged receipt. From Exhibit D6, however, the claimant was signing Exhibit D6 as one of the representatives of management. This could not be so unless the claimant was still in the employment of the defendant. So if the claimant was still an employee of the defendant when he signed Exhibit D6, it then means that Exhibits J and K were ineffectual as instruments of retirement. This leaves out Exhibit A, but WAEC v. Oshionebo held that a notice of retirement does not confer the right to withdraw from service immediately and automatically. Recourse to the conditions of service will have to be made in order to resolve the puzzle of the claimant’s retirement. Exhibit C is the NJIC agreement on terms and conditions of service for all senior employees in the building and civil engineering industry in Nigeria. The defendant in paragraph 8 of its amended statement of defence admitted that Exhibit C applies to the claimant. In Article 23, it provides as follows – On attaining the age of 60 years, an employee’s appointment will automatically terminate on grounds retirement. PROVIDED he has completed 10 years of continuous service, the employee may retire or be retired by the employer on/or after attaining the age of 50(Fifty) years. By this provision, retirement is automatic once an employee clocks 60 years. The employee can, however, retire or be retired at age 50 if he/she completed 10 years continuous service. The age of the claimant is not disclosed to the Court but there is no doubt that he spent over 30 years in the employment of the defendant having started work in March 1977. Beyond this, there is no provision for notice period where the employee retires or is being retired i.e. where retirement is not automatic at age 60. As indicated earlier, the claimant had put in his retirement vide Exhibits J and K; and then opted out of the retirement, an option the defendant accepted given that by 27th August 2010, the claimant was signing an agreement on behalf of the defendant. Since both parties accepted the fact that the claimant continued in employment despite Exhibits J and K, it means that the retirement of the claimant vide Exhibits J and K is no longer an issue. What then is left is Exhibit A; and the question here is whether the claimant can retire with immediate effect. WAEC v. Oshionebo held that he cannot. In paragraph 12 of the claimant’s further witness statement on oath of 14th August 2012, the claimant deposed that, further to paragraph 11 wherein he reiterated the provision of Article 23 of the NJIC agreement as to compulsory retirement at age 60, he tendered his notice of final retirement. This presupposes that the claimant retired given that he attained the age of 60 years. In this sense, retirement under the said Article 23 is automatic. Being automatic, it takes immediate effect and so cannot be rejected by the defendant. Here it must be noted that though WAEC v. Oshionebo held that a notice of retirement does not confer the right to withdraw from service immediately and automatically, this cannot override the clear intention of contracting parties in a contract of employment where the terms and conditions of employment as per the contract of employment is often the determinant of the rights, privileges and obligations of the contracting parties. See Ladipo v. Chevron (Nig.) Ltd [2005] 1 NWLR (Pt. 907) 277 CA. It is my finding and holding, therefore, that the claimant validly retired on 31st August 2010 vide Exhibit A, the final notice of retirement, the receipt of which was acknowledged by the defendant as evidenced on Exhibit A itself. This being the case, the defendant has no right to reject it or treat it as non-existent. The subsequent dismissal of the claimant vide Exhibit D1 is accordingly null and void and of no effect; and I so find and hold. Even if Exhibit A were invalid (and I do not so find), Exhibit D2 which asked the claimant to proceed on compulsory leave indicated that the claimant would hear from the defendant within one month. The defendant did not so reach out to the claimant until 27th February 2011 vide Exhibit D4 and thereafter vide Exhibit D1 of 29th April 2011. All of this sounds to me a certain measure of passivity on the part of the defendant. In ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA, it was held that the law gives the master the right to terminate the employment of a servant on his discovering that the servant is guilty of fraud. That the employer is not bound to dismiss the servant, and if he elects after knowledge of the fraud to continue with him in his service, he cannot at any subsequent time dismiss him on account of that which had been condoned. See also Ekunda v. University of Ibadan [2000] 12 NWLR (Pt. 681) 220 CA. I see the passivity of the defendant as one of condoning whatever the claimant is said to have done. The defendant cannot accordingly wake up in 2011 to dismiss the claimant for things traceable for a period up to 2010. I do not think the defendant acted appropriately in that regard. For all the reasons given, I find and hold that the claimant has made a case for reliefs (1) and (2). The claimant is accordingly entitled to (1) a declaration that the purported summary dismissal of the claimant from the employment of the defendant is unlawful, invalid, null and void and of no effect; and (2) an order setting aside the defendant’s purported letter of summary dismissal of employment dated 29th April 2011; and I so respectively declare and order. This leaves out reliefs (3), (5) and (6). Relief (3) is for an order directing the defendant forthwith to pay to the claimant outstanding and due entitlements and benefits as follows – (a) Arrears of salary from August 2009 to February 2010 N2,338,245.00 (b) Arrears of salary from April 2010 to August 2010 N7,525,750.00 (c) Leave pay and leave allowance for the years 2008 to 2010 N994,775.00 (d) Outstanding Retirement Benefit N14,562,942.47 The claimant in calculating his retirement benefits referred the Court to Article 23 of Exhibit C and then based his calculation on the basis of 23/4 months’ pay for each year of service. A look at Exhibit C will show that what it provides is 21/4 months’ pay for each year of service. This automatically means that the calculation of the retirement benefits of the claimant is based on a wrong formula. The claimant did not prove to the Court where the “23/4 months’ pay for each year of service” came from. However, the argument of the defendant is that even if the claimant is entitled to retirement benefits, this must be based on Exhibit D6, not Exhibit C. In reply, the claimant argued that even though he signed Exhibit D6 as a representative of management, it is not binding on him. Ladipo v. Chevron (Nig.) Ltd [2005] 1 NWLR (Pt. 907) 277 CA held that more than one document can constitute the terms and conditions of a contract of employment. Article 2(C) of Exhibit C in providing that “without prejudice to the existing salary structure in member Companies, a Senior Staff shall not be expected to earn less than N210,00 basic salary per annum” acknowledges that other than Exhibit C may contain additional terms and conditions of employment binding in member companies. In fact Article 2(B) had earlier provided that the terms of Exhibit C “form part of the individual employee’s contract of employment”. To “form part” merely acknowledges that there is or there are other part(s). I do not, therefore, agree with the claimant that he is not bound by Exhibit D6. He is so bound; and I so find and hold. That being the case, the claimant’s retirement benefits are to be calculated on the basis of Exhibit D6; and here I note that although Ekunola v. ACBN [2006] 14 NWLR (Pt. 1000) 292 held that where benefits have accrued under a contract of employment, any clause in the conditions of service which seeks to take away that benefit must be strictly construed, it did not say thereby that such a clause is for just that reason invalid. It will remain valid if it is the intention of the parties just like Exhibit D6 is the intention of the parties even though it made provision for a reduced calculation of benefits to deserving employees. I must also point here that the claimant acknowledged throughout his communications with the defendant regarding his retirement that the defendant company was undergoing re-organisation, hence the need for Exhibit D6. Article 23 of Exhibit C provides that retirement benefit is to be calculated on the basis of total emolument, defined as including basic salary, rent subsidy and transport allowance. Article 26 of Exhibit C then puts transport allowance at N17,000 per month. The claimant in Exhibit B indicated that his transport allowance is N25,000 but he did not indicate to the Court how he came about this sum. The payslips in Exhibit D5 indicate the claimant’s basic salary to be N123,500 per month and the housing allowance to be N86,450 per month. So in calculating the claimant’s monthly salary for purposes of his retirement benefit, we will take the basic salary plus housing allowance plus transport allowance, which is N123,500 + N86,450 + 17,000, the total being N226,950 per month. To calculate the claimant’s retirement benefit as per Exhibit C, the formula is 21/4 months’ pay for each year of service. The gross monthly salary of N226,950 divided into 4 gives us N56,737.5. 21/4 months’ pay for each year of service, therefore, comes to: N226,950 + N226,950 + N56,737.5, which is N510,637.5. When N510,637.5 is multiplied by 331/2 years of service, what we have is N17,106,356.25. By Exhibit D6, the claimant is entitled to only 40% of N17,106,356.25, which comes to N6,842,542.50. Accordingly it is my order that what the claimant s entitled to as retirement benefit in virtue of Exhibit D6 is N6,842,542.50 only. The claimant next prayed for arrears of salary for the period August 2009 to February 2010 at N2,338,245.00; for the period April 2010 to August 2010 at N7,525,750.00; and leave pay and leave allowance for the years 2008 to 2010 at N994,775.00. Both parties are agreed that the outstanding arrears of salary for the period claimed by the claimant is N3,863,395. See Exhibit B and paragraph 5.9 of the defendant’s written address filed on 29th April 2014. The only point of difference is that the defendant argues that what the claimant is entitled to is 75% of this sum as per Exhibit D6. I agree with the defendant for reasons already stated. The formula in Exhibit D6 is “75% of outstanding salaries” for senior and management staff. 75% of N3,863,395 accordingly comes to N2,897,546.25. This is the sum due and payable to the claimant as arrears of salary; and I so order. The leaves out the claim for leave pay and leave allowance. Exhibit D6 says nothing about leave pay and leave allowance; as such we have to fall back on Exhibit C. Article 12 of Exhibit C provides that an employee who has completed one year of continuous service shall be entitled to annual leave of 30 calendar days exclusive of public holiday, regardless of the number of year of service. That the employee shall be paid leave allowance of N21,000 or 10% percent of his annual basic salary whichever is higher. Beyond this, nothing is said of leave pay, which is payment for leave not taken. The claimant’s monthly basic salary is N123,500, which when multiplied by 12 months gives us N1,482,000 per annum; 10% of which will be N148,200. This is the amount due and payable to the claimant as leave allowance, not the N222,300 claimed by the claimant, who incidentally did not show to the Court how he came about the sum. The claimant is claiming leave allowance for the period 2008, 2009 and 2010. The claimant submitted that as a top executive of the defendant, he is entitled to 2 months leave every year; and when he does not go on leave or takes only part of his leave, he is entitled to leave pay which is the basis salary for that period in lieu of leave. The claimant did not authenticate this submission with any documentary evidence. So I find it difficult to go beyond what Exhibit C says. Since Exhibit C is silent on leave pay, I cannot accede to any claim of the claimant in that respect. All that is left is the claim for leave allowance, which I indicated is N148,200 per year based on Exhibit C. The defendant acknowledged that the claimant is entitled to leave allowance for 2010 but at the prorated sum of N98,800 for the 8 months that the claimant worked in 2010 given that he retired on 31st August 2010. I agree with the defendant regarding the claim for leave allowance for 2010; and so for that year what is due and payable to the claimant is N98,800 – and I so order. This leaves out the claims for the years 2008 and 2009. The argument of the claimant here is that he was not paid leave allowance for these years. In answer, the defendant submitted that the claimant was not paid leave allowance for these years because he overpaid himself his leave allowance for the cost of visa and ticket fare from the defendant’s petty cash, referring to Exhibit D7. In reply, the claimant stated that it is the custom of the defendant to pay for cost of visa fees and air tickets for those entitled and that the trip was eventually cancelled. There is no proof before the Court of the defendant’s custom as asserted by the claimant. There is also no proof of the cancellation of the trip beyond the claimant’s statement. Exhibit D7 indeed shows payment for visa and air ticket. I accordingly believe the defendant on this score and hold that the claimant is not entitled to the said leave allowance for 2008 and 2009. The claims in that regard accordingly fail and are dismissed. The last claims (reliefs 5 and 6) of the claimant are for interest and cost. Since this is at the discretion of the Court, I shall allude to them at the end of the judgment. In Exhibit B, the claimant acknowledged that N6,000,000 was paid to him as part of his retirement benefit; and that he has an outstanding loan of N1,081,826.28. These sums added together comes to N7,081,826.20. Now, earlier I awarded to the claimant against the defendant the sum of N6,842,542.50 as retirement benefit, N2,897,546.25 as arrears of salary and N98,800 as leave allowance for the year 2010. When added up, these sums come to N9,838,888.75. If N7,081,826.20 is thus subtracted, what we have as due and payable to the claimant is N2,757,062.55. It is my final order, therefore, that what is due and payable to the claimant by the defendant is N2,757,062.55. For the avoidance of doubt, and for the reasons already given, the claimant’s case succeeds in part and only to the following extent – 1. It is hereby declared that the purported summary dismissal of the claimant from the employment of the defendant is unlawful, invalid, null and void and of no effect. 2. Accordingly, the defendant’s purported letter of summary dismissal of employment dated 29th April 2011 is hereby set aside. 3. The defendant shall pay to the claimant within 30 days of this judgment the sum of Two Million, Seven Hundred and Fifty-Seven Thousand, Sixty-Two Naira, Fifty-Five Kobo (N2,757,062.55) only as retirement and other entitlements due to the claimant from the defendant. 4. Failure to pay the N2,757,062.55 as ordered, the said sum shall attract interest at 10% per annum. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip