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NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 2ND JUNE, 2014 Suit No. NICN/ABJ/54/2013 BETWEEN TALO TUWAN SUNDAY CLAIMANT AND ZENITH BANK PLC DEFENDANT REPRESENTATION G. E. Agbo Esq for the Claimant. I. Ogbogu Esq with Julius Mba Esq with the Defendant. JUDGMENT The claimant commenced this suit by way of a complaint dated and filed on 14th March, 2013 and seeking for the following reliefs against the defendant:- 1. A Declaration that the termination of the Plaintiff’s employment on 15th April, 2009 is unlawful, null and void. 2. An Order of this Honourable Court reversing the wrongful termination of the Plaintiff’s appointment by the defendant. 3. An Order of this Honourable Court directing the defendant to pay the claimant all salaries and entitlements from April, 2009 till date. 4. The sum of N9,000,000.00 (Nine Million Naira) Only being damages for the wrongful termination of the Plaintiff’s appointment by the defendant. 5. The cost of this suit. Attached to the complaints are the claimant’s statement of facts, list of witnesses, witness statement on Oath and list of documents to be relied upon. In response to the suit, the defendant entered a memorandum of conditional appearance dated and filed on 9th May, 2013, statement of defence and other accompanying processes deemed properly filed and served on 24th July, 2013. The matter went on trial, the claimant testified, in his case, tendered Exhibits and close his case on the 18th of September, 2013. On the other hand, the defendant also called 2 witnesses in the person of Joseph Igbor a Banker with Zenith Bank and Mr. Omoleye Abiuwa also a Banker with Zenith Bank. The defendant closed his case on the 7th of November, 2013. Thereafter, parties filed and exchanged their final written addresses and the case adjourned for adoption which could not be done until 10th March, 2014. The case was adjourned for Judgment to 2nd June, 2014. In adopting his final brief of argument the defendant formulated two issues:- 1. Whether the claimant’s appointment was rightly terminated. 2. Whether the claimant is entitled to damages. It is the defendant submission that the complaint initiating this suit was not signed by the legal practitioner who purportedly prepared same. It is duty of the claimant’s legal practitioner to prepare Form 1 in accordance with the prevailing law. The complaint in this case is void being an unsigned document. Counsel submitted further that in legal parlance, a document is prepared by the person who signed it. In the instant case, on the face of Form 1 which is the complaint, the person whose name was endorsed therein as the person who prepared it, did not sign the Form. See the case of SLB CONSORTIUM LTD V NNPC (2011) 9 NWLR (PT. 1252) 317. In SIB CONSORTIUM LTD V NNAPC (2011) 9 NWLR (PT. 1252) 317, the Supreme Court was faced with the interpretation of Order 26 Rules 4 (3) of the Federal High Court (Civil Procedure) Rules 2000 which provides that ‘pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person’. The Supreme Court considered the non-signing of the pleading by a practitioner whose name was expressed on the process to be an issue of jurisdiction robbing the court of competence to adjudicate on the matter. At pages 337 – 338 (Paras H – A) the Supreme Court per Rhodes – Vivour JSC held thus:- All processes filed in court are to be signed as follows:- First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written. Thirdly, who counsel represents. Fourthly, name and address of legal firm. (Emphasis mine). His lordship further held at 337 (Para G) that “Once it cannot be said who signed a process it is incurably bad, and rules of court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the legal practitioner Act”. He therefore submitted that it would have been a different ball game if counsel that prepared the complaint had written the name of her firm and then write her own name on top of it as her signature, because signature can be any mark or contraption including the inscription of the person’s name in his hand writing. In the instant case Order 4 Rule 4 sub rule 3 of the National Industrial Court Rules 2007 states that:- An originating process shall be signed by the claimant or his or her legal practitioner where the claimant sues through a legal practitioner. (Emphasis mine) Counsel submitted that the word ‘shall’ is mandatory not discretionary and therefore, the provision of the Rules of Court involved herein are, by the wordings mandatory not discretionary. See also OKAFOR V NWEKE (2007) 10 NWLR (PT. 1043) 521 AT 350 – 351 (PARAS H – E) and DAVID V JOLAYEMI (2011) 11 NWLR (PT. 1258). The originating process commenced by writ in this case complaint is prepared by the claimant or his counsel. It is the endorsement of the claim, which being the claimant’s demands, that must be authenticated by the claimant or his lawyer. Certainly not the Registrar whose role on the process is to issue the command that will compel the appearance to answer to claimant’s claim. Where the foundation, which in the instant case is the complaint, is defective, no subsequent process can authenticate it. This is supported by the popular maxim you cannot put something on nothing and expect it to stand. Being a condition precedent to the validity of the initiating process, its non-compliance means that the action was not commenced by due process. See MADUKOLUM V NKEMDILIM (Supra). Counsel contended that with the complaint in this case being void and/or incompetent the entire proceedings of the court which rest on it must collapse. See FABIYI JSC in SLB CONSORTIUM LTD V NNPC (Supra). That in view of the above principle of law enunciated by the erudite justices of the Supreme Court, that this Honourable Court should dismiss this suit for being incompetent. On the 2nd issue whether the claimant’s appointment was rightly or wrongly terminated. Counsel submitted that on 15th April, 2009 resulting in the writing of the letter of termination (Exhibit S4) to him by the defendant. It is pertinent to point out that the letter of appointment (Exhibit S2) confirming the appointment of the claimant spelt out in clear and unambiguous terms that the claimant amongst other things shall be bound by the existing general conditions of service of the bank (Defendant and any future amendments). The claimant being sized of the general conditions of service of the defendant wrote acceptance letter and resumed duty in the defendant’s office. The general conditions of service of the defendant (Exhibit J1) which the claimant under cross – examination acknowledged of its existence spelt out in Clause 6 the procedure for termination of the services of staff including the claimant. Counsel submitted that in the instant case the contract of service is spelt out in clear and unambiguous terms in the general conditions of service of the defendant. Clause 6 of the said Exhibit J1 spelt out procedures for termination of appointment of employee of the Bank (Defendant). Specifically Clause 6. 1: stated that the Bank or an employee may terminate an appointment without cause and without assigning any reasons by either party giving necessary notice in writing to the other as stated. The said paragraph 6.1 further provide that alternatively, salary to cover the same notice period applicable in each case, can be paid in lieu of notice by either side. (Emphasis mine). Counsel went further to discuss the lawfulness or otherwise of the termination of appointment. The claimant under cross examination admitted knowing the policy as ‘Bait Test’ and further went ahead to described category of staff this test is conducted on. The claimant also acknowledged under cross examination what transpired between him and DW2. From the Evidence of PW1, DW1 and DW2 it is apparent that a Bait Test was conducted on the claimant who failed the Test. Consequent upon which query was issued against him Exhibit S3, which he replied to, apologizing for his misdemeanour as contained in Exhibit J2. The fact that Administrative panel was not set up to try the claimant (PW1) was succinctly explained by both DW1 and DW2 who both testified under cross examination that once a staff of the defendant fails Bait Test there is no need to institute administrative panel. They went further to state that if the circumstances leading to overage or shortage is known there is no need to institute Administrative panel. They went further to state under cross examination that Administrative panel is set up in some cases if the circumstances leading to either overage or shortage is not known. They also said that in both cases queries are issued to staff who failed the bait test and staff who recorded overage or shortage. In the latter case, if the staff satisfactorily explains the circumstances of the overage or shortage, the staff is cautioned and the Bank (defendant) bears the cost in case of shortage. On the issue of whether the claimant was given fair hearing the counsel submitted the DW2 under cross examination stated that the defendant cannot terminate an employee’s employment without giving him fair hearing. He stated that the claimant an employee of the Bank was queried (Exhibit S3) after failing the Bait Test and he apologized (Exhibit J2). In any case the claimant’s employment has no statutory flavour in that there exists general conditions of service (Exhibit J1) which regulates the claimant’s employment and relationship with the defendant Clause 6.1 provides that the Bank or an employee may terminate an appointment without cause and without assigning any reasons by either party giving necessary notice in writing to the other as stated herinafter. (Emphasis mine) The same Clause 6.1 also provides that salary to cover the same notice applicable in each case, can be paid in lieu of notice by either side. From the above, provision of Exhibit J1 the defendant has unfettered right to terminate the appointment of the claimant so long as it complies with the procedure for termination provided in Clause 6.1 of Exhibit J1. See DUDSOLA V N.G. CO LTD (Supra) page 436 para F per AKA’AHS JSC thus:- Where parties to a contract mutually agree that the condition for termination is the giving of notice or payment of equivalent salary in lieu of notice, the only valid way to discharge a party from his obligations under the notice stipulated is the payment of the equivalent salary for the period of the notice. (Emphasis mine). Counsel then submitted that in the instant case the claimants was not only paid salary in lieu of notice but also paid other entitlements (Exhibit J3) and (Exhibit S6d) thereby discharging the defendant of any obligations towards the claimant. Assuming without conceding the fact that the said termination of employment is unlawful the Supreme Court in DUDUSOLA V N.G. CO LTD (Supra) per AKA’AHS JSC at page 436 Paras C – E. From the evidence presented, it is clear that the relationship between the Appellant and the Respondent is a mere master and servant relationship. In such a case respondent who is the master has an unfettered right to terminate or even dismiss the appellant, who is the servant. The motive in exercising the right does not render the exercise of the right ineffective. In other words, the Respondent is at liberty to terminate the Appellant’s employment with or without any reason…. (Emphasis mine). ….. Termination of a contract of service even if unlawful brings to an end the relationship of master and servant, employer and employee. The law is trite that a servant (employee) even though willing and able cannot be imposed on an unwilling master (the employer). Exhibit J1, the general conditions of service of the defendant in Clause 6.1 also stated that either party may terminate employment with or without cause implying that neither party is obliged to give reason for termination of employment. It only stated that in the event of termination of employment by either party notice or salary in lieu of notice must be given by the party terminating the employment. The Supreme Court in DUDUSOLA V N.G. CO LTD (Supra) per MOHAMMED JSC at page 437 paras held:- As the letter of termination shows that the services of the Appellant were no longer required by the Respondent, that was quite in order under the law ….. From the principles of law enunciated by the available of decided cases cited and the evidence presented, it is clear that the relationship between the defendant and he claimant is a mere master and servant relationship. In such a case, the defendant who is the master has an unfettered right to terminate or even dismiss the claimant, who is the servant. The motive in exercising the right does not render exercise of the right ineffective. In other words, the defendant is at liberty to terminate the claimant’s employment with or without any reason. See FAKUADE V OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITAL (1993) 3 NWLR (PT. 291) 47 at 58. He submitted with respect that the claimant’s appointment was validly terminated and urged the court to so hold and dismiss reliefs 1 and 2 of the Statements of facts, the claimant employee cannot be imposed on an unavailing master (defendant). See also U.B.N. V CHINYERE (2010) 10 NWLR (PT. 1203) Para 475, Paras D – E. On whether claimant is entitled to relief 3, i.e the payment of all salaries and entitlements from April 2009 till date counsel submitted that the general conditions of service (Exhibit J1) stipulates the procedure to be adopted by either party in terminating his/its employment. Specifically Clause 6.1 provides thus:- Alternatively, salary to cover the same notice period applicable in each case, can be paid in lieu of notice by either side. Accumulated leave in respect of completed calendar months service may be incorporated in the notice period. In these circumstances and if the staff is entitled to leave allowance or leave fares that have previously been enjoyed, such allowance shall be paid to the staff. From the foregoing provisions of the general conditions of service (Exhibit J1), the pertinent question to ask is “Did the defendant abide by the provisions of the said conditions of service (Exhibit J1). Our answer is in the positive as the defendant computed what they called “End of service account” totally N724,163.73 (Seven Thousand and Twenty-four Thousand One Hundred and Sixty-three Naira Seventy-three Kobo) Only in favour of the claimant representing his net entitlement from the Bank (Defendant) (Exhibit J3) and (Exhibit S6d). Since the relationship between the defendant and the claimant is that of master/servant created by Exhibits S1 and S2 which are subject to the provisions of Exhibit J1 which contains the collective agreements as incorporated into the individual contracts of employment, both parties to the contract of employment, in the instant case the claimant and the defendant are bound by the aforementioned documents i.e. Exhibits S1, S2 and J1. See EKUNOLA V C.B.N. (2010) 15 NWLR (PT. 1377) PAGE 268 PARAS A – C per CHUKWUMA ENEH JSC:- The truth of this matter as between the appellant and the 1st Respondent is that their employment relationship has subsisted at all material times as a relationship of master/servant created as per Exhibit ‘A’ i.e. the contract of employment into which has been incorporated the provisions of Exhibit ‘D” … which contains the collective agreements as incorporated into the individual contracts of employment of the 1st Respondent’s employees. This is so based on the facts and evidence before the court. Both documents constitute the basis for determining the contractual relationship and the conditions of the Appellant’s employment with the 1st Respondent here. It is common law ground and as rightly found by the two lower courts that the nature of the Appellant’s employment does not savour of statutory flavour. In other words, it is entirely founded on common law. The necessary implication arising from the parties’ contractual relationship in this matter if I may emphasis is one founded on the common law and like all general contract is determinable by either side as provided in the documents Exhibits ‘A’ and ‘D’ for breaches of any fundamental conditions as stipulated therein. (Emphasis mine). It is clear form the above common law principles of master/servant relationship under the contract of employment that the parties to the contract are bound by the terms and conditions as enshrined in the various documents establishing the contract. It is in respect of the foregoing that counsel urged the court to dismiss relief 3 of the claimant’s statement of facts. On whether the claimant is entitled to N9,000,000.00 (Nine Million Naira) Only damages for wrongful termination of appointment by the defendant. The claimant has not in his evidence established that he is entitled to damages for wrongful termination of employment. In the claimant’s letter of appointment which incorporates the conditions of service of the defendant, it made specific reference in paragraph 19 of page 2 as follow: you will be bound by the existing general conditions of service of the Bank and any future amendments’. It follows from the above provisions that there, exist general conditions of service which forms the bedrock of the contractual relationship between the claimant and the defendant and which must be resorted to in the event of dispute between both parties. The claimant who though did not tender the general conditions of service (Exhibit J1), the claimant’s employment was validly terminated as due process as provided in the general conditions of service was followed. The claimant did not lead evidence to warrant a finding that the termination of his employment was wrongful. Even if he has led evidence which we are not conceding, the claimant will not be entitled to the damages claimed as measurement of damages would be based on the salaries for the length of time during which notice of termination was given in accordance with the contract of employment. See U.B.A V CHINYERE (2010) 10 NWLR (PT. 1230) PAGE 475 PARAS A – B per GUMEL JCA stated thus:- I wish to point out that the law has amply clarified the position that where the termination of a contract of service was found to have been wrongful, the measure of damages the Plaintiff would be entitled to would be the salaries for the length of time during which notice of the termination would have been given in accordance with the contract of employment. However, in the circumstance of this matter there was no evidence to warrant a finding that the termination of the employment of the Respondent was wrongful. (Emphasis mine). Parties are bound by their pleadings. Counsel submitted that general damages is not awarded in a matter of this nature particularly when the claimant has not proved a particular right of his that has been affected. The claimant is therefore, not entitled to general damages and he urged the court to so hold. It is our submission that cost follow the event in litigation and that a successful party is entitled to cost. In the instant case the claimant has failed woefully to prove his case against the defendant and therefore not entitled to any cost. Also the claimant did not lead evidence to establish how he incurred the said cost. See the case of ANYEGBUNAM V OSAKA (1993) 5 NWLR (PT. 2940) PAGE 464. In conclusion, the claimant has failed to prove his case on the preponderance of evidence. He has failed woefully to establish his claims with a tinged of evidence. In the light of this he urged the court to dismiss the claimant’s suit with substantial cost. The learned counsel for the claimant formulated the following issues for determination:- 1. Whether from the circumstance of this case the claimant’s employment was wrongfully terminated. 2. Whether the claimant has discharged the burden of proof placed upon him to entitle to the reliefs sought in his complaint. On issue 1, whether from the circumstance of the case, the claimant’s employment was wrongfully terminated. Counsel submitted both the claimants and defendant had a written contract of employment for twelve months as Executive Assistant dated 13/09/2007, the third paragraph of pg. 2 of this contract of employment is to the effect that upon satisfying certain condition, the claimant contract will be confirmed and the claimant appointment was indeed confirmed vide a confirmation of employment letter dated September 26, 2008. Furthermore, in the same paragraph, it was provided that the claimant may resign his appointment with the Bank by giving one month notice or paying the Bank one month salary in lieu of notice. The impression created here is clear that each of the parties can terminate the appointment by giving notice or payment in lieu of notice. The trite law is that when no mode of termination of a contract of service by any form of notice is stipulated in a contract then, the common law will apply. See the case of SHENA SECURITY V AFROPAK (2008) MSCQR VOLUME 34 (PT. 11) PG. 1311 – 1312. The paragraph 6 of the said contract of service made mention of existing general condition of service and the defendant wants this court to believe that the 59 paged document frontloaded in his statement of defence and admitted in this court as Exhibit J1 forms part of the two paged contract of employment which the claimant signed with the defendant. However, the claimant testified that he never saw this document (Exhibit J1) before and none was given to him either, the first time he saw this document was in the court room, during the trial. Counsel then submitted the case of the claimant should succeed since the bedrock upon which his case ought to be founded was neither given to him nor the content disclosed to him when he engaged by the defendant. The law is trite that once there is a written Agreement or contract between parties, extrinsic or oral evidence is not admissible to vary such agreement, the court stated in the case of LAMIE V DATA PROCESSING LTD (NSCOP) VOLUME 24:- It is the law that where parties have enibold the term of their contract in a written document, extrinsic evidence is not admissible to add to vary, subtract from or contradict the term of the written instrument per Onnoghen JSC Pg. 337. Counsel therefore, submit that this document (Exhibit J1) does not and also did not form part of the contract of employment signed by the parties. He referred the court to paragraphs F, G and H of the above cited authority. Counsel submitted that it is trite that once there is a written Agreement or contract that parties, extrinsic oral evidence is not admissible to very such agreement, as stated by the court in the case of Lamie V Data Processing Ltd (NSCOP) Volume 24. He further argued that (Exhibit J1) does not and also did not form part of the contract of employment signed by the parties. He further argued that in Nigeria, the contract of employment of employer/employee relationship is governed by the Labour Act CAP LFN 2004. Section 11 of this same Act provides for termination of contracts by notice, this where the contract between the parties is silent as the length of notice to be given out in the contract of employment is one month. Section 11 of the aforementioned labour Act also provides that:- All wages payable in money shall be paid on or before the expiry of any period of notice. Payment in lieu of notice is however permissible both and under the common law but the time, way and manner of this payment matters so much and is considered to be fundamental. He referred the court to the case of CHUKWUMAH V SHELL PETROLEUM DEVELOPMENT CO (1999) 4 NWLR 512 AT PG. 518. In the case, the appellant appointment was terminated on August 18th, 1981 and payment in lieu of notice was made to his account on the 25th November, 1981. The court held this was not in compliance with the contract of service. Counsel submitted that the late purported payment of salary in lieu of notice and all entitlements of the claimant in July 2012 were done in bad faith hence a wrongful termination of his appointment by the defendant, and he urged this Honourable Court to so hold. Counsel also submitted the so called “bait test” was carried out in bad faith and it was a mere act of witch-hunting by some staff of the defendant thus dovetailing in the termination of the claimant’s employment vide the letter of termination dated 14th April, 2009. Counsel further submitted here for purposes of emphasis that the claimant employment with the defendant was wrongfully terminated hence, it should declared as unlawful, null and void. On the 2nd issue whether the claimant has discharged the burden of proof placed upon to be entitled to the reliefs sought in his claim. This is answered in the affirmative. Section 134 of the Evidence Act 2011 states that:- The burden of proof shall be discharged on the balance of probabilities in all civil cases. The claimant has been able to prove that he signed a two page; and two page only contract of employment with the defendant back on the 13th of September, 2007, he also testified to that effect. The contract of employment letter which he tendered to the court was admitted in evidence as Exhibits S1 and S2. The claimant has shown in his evidence that he was not paid his salary and entitlement in lieu of notice which constituted a breach of his contract of employment. Counsel referred to the case ISHENO SAMUEL V JULIUS BERGER NIG. LIMITED (2002) 33 NSCQR 296 AT PG. 329. The defendant who on its own violation decided to terminate the claimant’s employment ought to have done the needful which they did not and since they decided to hold the claimant’s entitlement for more than three years, they did that to their own peril, therefore, the claimant is entitled to damages. Counsel referred to the case of WESTERN NIGERIA DEVELOPMENT CORPORATION V JIMOH ABIMBOLA (1966) NMLR 38 @ 382. Counsel argued that the Bait test conducted by the defendant and the subsequent termination of the claimant’s appointment with the defendant carried with it a stigma on the character of the claimant and hence the claimant is entitled to substantial damages or beyond his salary for the period the notice was required. This is a trite law. He referred to the case of BRITISH AIRWAYS LTD V MAKANJUOLA (1993) 8 NWLR (PT. 311) PG. 276. That the act of freezing the claimant’s account after the so called “bait test” on 16/2/09 even before termination letter was handed to the claimant is wrongful and unjust hence the claimant is entitled to damages and he urged the court to so hold. The defence in his written address submitted “that the claimant commenced this suit by an unsigned complaint filed on 14th March, 2013 and the said complaint in form 1 was purportedly issued by Catherine Ogbeni Esq of Ukaegbo & Co who did not sign the compliant”. Form 1 was prepared in accordance with the prevailing law and going by Order 3 Rule 2 (1) of the National Industrial Act, 2007. The claimant’s legal practitioner prepared the complaint using the general form of complaint (Form 1) of the National Industrial Court Rule 2007. The processes were in order, all that needed to be signed by the legal practitioner and the claimant were duly signed and forwarded to the Registry. The were certified to be in order before a date was given. The Defence counsel had really made an enormous tour guided by cases decided based on High Court Rules of various states and the Federal High Court. The defence counsel was not guided by the National Industrial Court Rule regarding form 1 which did not make provision for all what he invested his energy pulling horrendous arguments on. The National Industrial Court is a special court distinct from the Federal High Court; their procedures and proceedings are simple, user friendly, fair, and specially handed out to make sure that technicians does not defeat a good cause of action like in the instant case. The defendant is not in any way put at disadvantage position as to necessities an objection. Order 8 of the National Industrial Court provides for Memorandum of Appearance; Conditional Appearance is strictly not provided in the rules. Defence counsel is misguided when he entered Conditional Appearance. Howbeit, Order 5 of the National Industrial Court rule provides:- Order 5 Rule 1: Failure to comply with any of these Rules may be treated as an irregularity and the court may give any direction as it thinks fit. Order 5 Rule 3: The court may direct a departure from these Rules where the interest of Justice so requires. Counsel submitted with Belgore JSC (as he then was) that procedures are to guide orderly and systematic presentation of a case; it is to help the substantive law and not to enslave it. FAMFA OIL V ATTORNEY-GENERAL OF THE FEDERATION & ANOTHER (2003) 11 MJSC 66. Counsel urged the court to discountenance the objection of the defendant and his submissions and grant the claimant’s reliefs. In conclusion, counsel submitted that justice is what the claimant has come to this Honourable Court to seek and nothing more, and from all the foregoing the claimant has been able to establish a claim against the defendant and he urged this Honourable Court to grant the claimant reliefs as sought. The Defendant replied on point of law, submitting that counsel asked whether Form 1 was prepared in accordance with the prevailing law and going by Order 3 rules 2(1) of National Industrial Court Act, 2007 and also whether Order 5 Rules 1 and 3 will cure this patent defect. Counsel submitted that the word “Shall” as used above is mandatory not discretionary and therefore, the provision of the Rules of Court cited above is mandatory. The argument by the learned counsel for the claimant that the court should treat this fundamental breach as mere irregularity by citing Order 5 Rules 1 and 3 of the National Industrial Court Rules was debunked by Justice Rhodes – Vivour JSC in the case of SLB CONSORTIUM LTD V NNPC (2011) 9 NWLR (PT. 1252) at page 337 Paras G – A where he stated thus:- What then is so important about the way counsel choose to sign processes. Once it cannot be said who signed a process it is incurable bad and rules of court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the legal Practitioner Act). All processes file in court are to be signed as follows:- First, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of legal firm. In the instant case, the complaint which is the originating process that forms the foundation of this suit is without signature and therefore, incurably bad, must collapse with other steps and processes taken in this suit. The argument of the learned counsel of the claimant that the court is a special court does not discharge the court of extant laws of the land made to guide the court in doing justice to all parties before the court. Suffice it to add also that the Federal High Court is also a special court establish to adjudicate on issues involving the Federal Government and its Agencies. Counsel further submitted whether from the circumstances of the case, the claimant’s employment was wrongfully terminated. Parties are bound by their pleadings and he who asserts must prove what he claims. The wordings in Exhibits S1 and S2 are very clear and unambiguous. Page 2 paragraph 3 line 7 of Exhibit S1 state inter-alia “After confirmation of your employment, you may resign your appointment with the Bank subject to giving the Bank one month notice or paying the Bank one month salary in lieu of notice. (Emphasis mine). From the foregoing, Exhibit S1 stated in explicit term that it is only the claimant and not the defendant that is bound to give the defendant one month notice or one month salary in lieu of notice upon his resignation. The issue on termination of appointment by the defendant was clearly provided in the defendant’s general conditions of service i.e. Exhibit J1. Since the learned counsel for the claimant made heavy weather out of the response of the claimant on cross examination with respect to knowledge of the general conditions of service, he referred the court to its records. Also instructive is the last paragraph of Exhibit S1 which asked the claimant to confirm acceptance of the offer in the said Exhibit. Exhibit S6 D provides in detail the claimant’s end of service entitlement which was sent timeously to claimant’s address in the defendant’s record but was returned unclaimed. This fact was given in evidence by DW1 and DW2 of which they were not cross examined by the claimant. The claimant therefore, cannot rely on these facts aforementioned as they were not pleaded in his statement of facts. Parties are bound by their pleadings and are foreclosed from introducing issues not raised in the pleadings. On the assertion by the claimant that the “bait rest” was carried out in bad faith and therefore act of witch hunting by some staff of the defendant. Counsel submitted that the policy of routine ‘bait test” evolved by the defendant is to guarantee the confidence of customers and ensure probity among its staff who are posted in the cash and teller unit of the defendant. The policy is not targeted at an individual member of the staff of the defendant. However, the Supreme Court in Chukwumah V Shell Petroleum Supra per KARIBI-WHYTE, JSC as he then was held thus at page 558 paras E – F. …. the proposition that the motive for doing an act does not necessarily determine the legality of the act is too well settled to require discussion … if there is a right to do an act, the fact that the motive for doing the act is bad will not affect its validity or legality …. (Emphasis is mine). It is the defendant counsel submission that the defendant has the legal right to terminate the employment of the claimant with or without cause as stipulated in Exhibit J1. Counsel submitted that the claimant is not entitled to declaratory relief sought. In this suit the claimant has failed abysmally to lead evidence that his contract of service was not lawfully determined and is therefore still subsisting. In this case issue was joined on the question of bad faith as pleaded in paragraph 23 of claimant statement of facts and witness statement on Oath. It is our submission that going by evidence adduced by the claimant, he failed to establish bad faith against the defendant which he said was basis of determination of his employment. It is an elementary but fundamental requirement of law. He has not led evidence to establish his claim. See Chukwuma V Shell Petroleum (Supra) per Karibi – Whyte at page 560 paras H – A. He urged the court with respect to dismiss this suit with substantial cost as it entirely lack merit. Having carefully considered the issues raised by parties, but before tacking the issues formulated by the defendant, the defendant counsel submitted that in the instant case, and on the face of Form I, which is the complaint, the person whose name was endorsed therein as the person who prepared it did not sign the Form. That the word shall is used in OR 4 R4 Sub R 3 of National Industrial Court Rule 2007, that the original process shall be signed by the claimant or his or her Legal Practitioner. The defendant counsel then submitted that the complaint is defective, that no subsequent process can authenticate it. For this reason the court should dismiss the suit for being incompetent. For the look of things it is true that the complaint was not signed by the claimant or by his counsel. After a perusal of the originating processes filed, I discovered that though the complaint was not signed, the statement of facts was signed on the 11th of March, 2013 by Catherine Ogbeni Esq of Ukaego & Co. It is trite that a statement of claim supersedes the writ of summons. Hence if a relief is claimed in the in the writ of summons but not in the statement of claim, it shall be deemed to have been abandoned and a relief endorsed in the statement of claim which is not in the writ subsists. It is obvious that the reliefs claim in this suit are endorsed on the statement of facts and therefore they subsist as the claims of the claimant for this there is a competent claim before the court. The issues for the court to determine are:- 1. Whether the employment of the claimant was lawfully terminated. 2. Whether the claimant is entitled to damages. 3. Pay the cost of the suit. On the 1st issue which is whether the employment of the claimant was lawfully terminated, on this court has dwelt extensively on what an employee challenging termination of his employment needs to plead and prove for the purpose of clarity. See the case of Angel Spinning and Dyeing Ltd V Ajah (2000) 13 NWLR (Pt. 685) Pg. 532. a. He must placed before the court the terms and conditions of the contract of employment. b. Proving in what manner the said terms were breached by the employer. This is because the contract of Service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fail upon the terms. Therefore, in a written or documented contract of service, the court will not and should not look outside the terms stipulated or agreed therein deciding the rights and obligations of the parties. The provisions of a written contract of service bind the parties thereto. The onus is on the employee in this case to prove this the claimant who alleges that his appointment was wrongfully terminated to prove the wrong. In the case of Umoh V I.T.G.C. (2001) 4 NWLR (Pt. 703) 281 the court held:- That where a Plaintiff is seeking a declaration that the termination of his appointment is a nullity. It is incumbent upon him to plead the material facts regarding his appointment such as:- a. Its nature. b. The conditions. c. The circumstance under which the appointment may be terminated. In the instant case, the claimant tendered his letter of offer of employment dated September 13th, 2007 (Exhibit S) as Executive Assistant with the Bank for 12 months but did not tender the general conditions of service of the Bank referred to in the his letter of appointment. The claimant appointment was confirmed on the 26th of September, 2008. However, on 14th April, 2009, the appointment of the claimant was terminated by the defendant stating that his services are no longer required by the Management of the Bank. The facts leading to the termination of the claimant’s employment are that owing to the defendant desire to guarantee the confidence of customers and to ensure probity among its staff, the defendant evolved a policy of routine “bait test” on its staff in all cash handling units. By this system which is designed to discourage non-disclosure if dealings involving cash, certain sums of money are deliberately paid to cashier and entries scrutinised to ensure that the exact sum of cash was transaction is accurately represented in the Bank as well as the customer’s records. In doing so the Resident Auditor of the claimant’s branch was commissioned to pose as a depositor of cash provided by the Head of Operations of the defendant’s branch. The sum of N81,000.00 denominated in One Thousand Naira notes and Five Hundred Naira Notes were given to the claimant for deposit. The claimant counter four times and observing that two pieces of Five Hundred Naira were outstanding. He later enquire from the depositor how much he wanted to deposit to which he claimed to be N80,000.00. The claimant later stamped the slip and requested the depositor to record the transaction in the cash register. Thereafter the depositor identified himself as the Internal Auditor of the defendant Buwari Branch. The claimant having treated the deposit as N80,000.00 he was told in conjunction with the Resident Auditor that he had failed the bait test. He was consequently issued a query which he replied to and tendered a written apology. The defendant then decided to terminate his appointment without given any reason. He was not dismissed. The defendant thereafter, prepared the claimant’s entitlement and send same to his address known to the defendant but was returned unclaimed. It is the case of the claimant that the termination of his employment was wrongful, null and void. In this suit the claimant claims five (5) reliefs against the defendant. The principal claims are 1, 2, & 3 while 4 & 5 are auxiliary to and dependent on the success of reliefs 1 – 3. The summary of the first three claims are for orders of the court declaring the termination unlawful, null and void. (2) for the court to reverse the wrongful termination of the appointment and (3) directing the defendant pay his salaries and entitlement from 2009 – till date. The grouse of the claimant therefore is that the payment of his salary in lieu of notice and other entitlements were paid in July 2012 which was a breach of contract of service as his employment was terminated 14th April, 2009. He called in aid to buttress his stand the case of Chukwumah V Shell Petroleum Development Co. (1993) 4 NWLR 512 at Pg. 578 where the court held that the payment in lieu of notice was not in compliance with the contract of service. That the final entitlement was not paid promptly, the learned counsel said the claimant’s employment was wrongful terminated, hence it should be declared null and void. The claimant engaged the services of the counsel Ukaegbo & Co to receive his end of service. Thereupon the defendant delivered a letter dated 5th August, 2009 notifying the counsel that the claimant entitlement was ready for collection. By another letter of 10th July, 2012 disclosing how the calculation was done and with the defendant master’s cheque No. 00389762 for the sum of N724,163,73 issued in his favour. By looking at the terms of the contract of employment the court would decide whether the defendant complied with the terms of the contract before the employment of the claimant was terminated and if not can the termination of the employment be reversed. It is the duty of the claimant to place before the court the terms and conditions of service and to prove the manner and terms the conditions were breached by the employer. It is not the duty of the employer to prove that the termination was wrongful. The rules governing the relationship between the claimant and the defendant are the claimant’s letter of appointment and the general conditions of service of the Bank as stated in his letter of appointment. The claim of the claimant that his appointment is governed by the Labour Act cannot be correct, he cannot feigned ignorance of Exhibit J1 the staff conditions of service. The contract of employment or employer/employee is governed by the Labour Act where there is no formal contract of employment. The Act provides in Section 11 for notices to be given where no length of notice to be given where no length of notice to be given is stated. The claimant has not referred to the Section of the provisions Labour Act on the length of notice or mode of terminating employment applicable to his case. The law is that an employer can bring the appointment of his or her employee to an end for any reason or no reason at all, provided the employer follows the terms of the contract governing the relationship between the employee and the employer. Following the termination of the claimant’s appointment the defendant issued their Managers Cheque No. 00389762 for the sum of N724,163,73.00 (Seven Hundred and Twenty-four Thousand One Hundred and Sixty-three Naira Seventy-three Kobo) Only in favour of the claimant as his entitlement. The claimant was informed that his entitlement was ready for collection by a letter of July 11th, 2012 but that the letter was returned uncollected. What else is left for the defendants to do. Looking at the facts available to the court, can it be said that the defendant had breached the provisions of the contract of service between them. Yes, the defendant delayed for a period of 3 years before his final benefit was paid to him but that was done before a letter was received from his Lawyer. It is trite that the court will not impose an employee on an employer just as no employer can prevent an employee from resigning from his employment to seek greener pastures elsewhere. What should concern the court in situation of lawful termination of appointment is whether the claimant’s counsel wrote a letter of demand for reinstatement and payment of outstanding sum of N764,000.00 (Seven Hundred and Sixty-four Thousand Naira) Only. It is trite that the claimant cannot claim reinstatement and final benefit at the same time. See NNPC V IDONIBOYE-OBU (1996) 1 NWLR (PT. 427) 635. Therefore, the reliefs of the claimant praying the court for reinstatement, setting aside the letter of termination is misconceived as in law the court will not grant specific performance of such contract. This contract is a contract of personal services. Another reason is that where the termination is done wrongfully damages remedy is in damages. Still on this issue of termination, it is the law that an employee will not be forced on an unwilling employer in the case of employment relationship of master and servant. At the same time a master can hire and fire his servant, but it must in my view be done with caution. It is my view that in the case at hand the defendant acted too much in a haste to have declared that the claimant failed the bait test. I said so in that it is possible that the N1000 (One Thousand Naira) overage could have been declared at the end of the day’s business. To ambush him in course of the business of the day and concluded that he suppressed information to me is a hasty decision. In the said letter of apology to which the defendant were referring to and made heavy weather of the claimant said:- I Sunday Tuwan want to apologised (sic) for not declaring N1000 (One Thousand Naira) overage which was not noticed at the point of collection. I sincerely want to reiterate my commitment that I will be carefully when receiving case. Talo Sunday Tuwan SIGNED Utako Board The claimant said he did not notice at the point of collection, I would have thought that if after the close of business that day the claimant failed to disclose the N1000 (One Thousand Naira) overage then it could have been said that he failed the bait test. In this case the claimant is given benefit of doubt as to what would have happened at the end of the business that day. By this hasty action, the career of the claimant has been ended prematurely. The court cannot impose any worker on an employer in a case of master and servant. The employer has the right to hire and fire without given any reason. This is a great lesson for the claimant and other bankers to be more vigilant and careful in the manner they handle cash. For these reasons the claimant is therefore, not entitled to the granting of the reliefs 1 – 3. On the 4th relief, the claimant is claiming N9,000,000.00 (Nine Million Naira Only) as damages for loss of his appointment. This relief is also unattainable as this is not in consonance with the principle on which damages for wrongful termination is assessed. It must be noted that Exhibit J1 Condition of Service the Employee Handbook containing all the terms and conditions of contract between parties was pleaded by the defendant and same was marked as Exhibit J1. Section 6.1 provides that either party can terminate the appointment without assigning any reason by either party without stating the period of notice. It is the law that where period of notice is not provided for then the reasonable notice will be assumed as appropriate. In this case, the month notice that was given by the defendant was appropriate. The Damages are not awarded as matter of cause as same must be justified before it can be awarded. Before the award can be granted to the claimant he must have succeeded in the claims before the court. The defendant must have been held liable of the acts complained of and that would have been the basis on which court would rest the damages it sees fit to grant the claimant. It is a settled law that general damages are those damages which the law implies in every breach and in every violation of a legal right. It is a loss that flows naturally from the defendant’s act. For the court, the award must be in the light of evidence before the court and not based as speculative claims and scanty evidence. The claimant has failed to prove that he is entitled to the grant of the claim of N9,000,000.00. It is trite law that the measure of damages for wrongful termination prima – facie the amount the claimant would have earned had he continued in the employment. Lastly, on the cost of this suit the court makes no award. For these reasons the claim of the claimant fails and is hereby dismissed. Judgment is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE