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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: FEBRUARY 19, 2015 SUIT NO: NICN/LA/68/2013 BETWEEN Mr. Adesina Olusesan Tanimowo - Claimant AND Union Bank of Nigeria Plc - Defendant REPRESENTATION Olalekan Olanisebe for the Claimant. Odunola Jegede Mrs. for the Defendant. JUDGMENT On the 14th of February, 2013, Claimant in this case approached the Court for the following reliefs: 1. A declaration that the manner in which the defendant terminated claimant’s employment was not in compliance with due process, arbitrary and a breach of the claimant’s right to fair hearing. 2. The sum of N55,405,410 (sic) being short payment in Claimant’s income earned but not reckoned with in the computation of his salaries based on the Claimant position held as Assistant Manager between 12th June, 2008 and 17th February, 2012. 3. The sum of N2,231,080 being the amount short paid the Claimant on his gratuity estimated upon lower status of sub-manager instead of basing same upon that Assistant Manager status. 4. A declaration that Claimant has earned his pensionable income from the defendant’s services and that Claimant is entitled to pension till the end of his life. 5. The arrears of pension fallen due between 17th February, 2012 till date of judgment in this suit estimated at N194,458.33 per monthly basis for the remaining years the Claimant would live on earth. 6. The sum of N211,818 being cash in lieu of leave not taken by the Claimant for year 2006 and 2007 respectively. 7. The sum of N31,000,594.20 being the amount due in lieu of redundancy claims entitlement of the claimant. 8. Interest at the rate of 15% per annum for all the monetary awards which the Honorable court may make in this suit in respect of items (b),(c),(e),(f) and (g) above. 9. N50million as damages for the arbitrary and unfair termination of the Claimant’s employment in the service of the Defendant. 10. N20Million as the cost of this action. The complaint was accompanied by a statement of facts, List of witness, list of documents, Claimant’s statement on Oath and copies of the documents to be relied upon at the trial. Defendant entered appearance on 7/3/13 and filed its defence on 17/4/13. The statement of defence was accompanied by List of witness, witness statement on oath and list of documents to be relied upon at trial. Claimant later filed a Reply to the statement of defence on 11/6/13. The hearing of this case commenced on 2/12/13 when Claimant testified as DW1, adopted his written statement on oath dated14/2/13 as his evidence and tendered 21 documents as exhibits. The documents were admitted and marked as Exh. AOT1-Exh. AOT21. The case of the Claimant is that he was in the employment of the Defendant Bank as a bona fide staff between 18th April, 1983 and 17th February, 2012 when he was sacked from work after 29 years of meritorious services; that he rose from the position of Bank Clerk through the wrung of ladder to the post of Assistant Manager and in the course of which he received commendation and awards from the defendant; that sometimes in 2012, there was an incident of a staff account being overdrawn and this issue led to the sacking of the Claimant from the Defendant employment. The Claimant averred that the termination of his employment by the Defendant did not follow due process as he was not invited before a panel of inquiry for purposes of being heard on the transaction issues upon which the Defendant acted in this regard; that the Defendant arbitrarily and unfairly terminated his employment; that the Defendant failed to comply with its own Handbook which guides the Defendant’s conduct on routine, staff and administrative matter and returns; that the misconduct of the third party staff who overdrew his own staff account and the transaction/systemic error which enabled the said misconduct did not lead to any loss of funds by the Defendant; that the Defendant had adjudged the Claimant albeit wrongfully for the systemic error which enabled over-drawn balance in the third party staff account. The Claimant averred that the Defendant’s action on termination of his employment was contrary to the “revised staff disciplinary policy:” which circular was notified to all staff including the claimant on Monday 12th October, 2009; that the defendant adopted retro-active measure to determine the claimant’s employment; that the issue of the overdrawn account linked to the claimant took place in January 26, 2011 and the defendant issued a circular on the 18th January, 2012 titled “staff circular on overdrawn accounts” which was to take immediate effect; that the defendant backdated or retroactively used the said circular to determine the Claimant’s employment based on the incident which took place almost one year before the issuance of the “circular on overdrawn account”. According to the Claimant the systemic error or omissions in the processing of transactions within policy of the Bank where it leads to no loss of income attracts sanctions in the nature of caution, warning or suspension; that termination of employment was not included as part of sanctions stated in the said “revised staff disciplinary policy” neither was the procedure stipulated followed in the staff circular on overdrawn accounts used retroactively to determine the Claimant’s employment; that he wrote a letter of appeal to the Defendant to reconsider its punitive actions against him and that another letter was written by the line Head of Department under whom he worked during his employment but all to no avail. Claimant stated further that the Defendant’s non interest in the Claimant’s appeal to be reinstated to his duty post was communicated to him via a letter dated 23rd July, 2012; that he joined the Defendant at a very tender age of 18years in 1983 and he has done no other job except banking with the defendant; that his career was cut short abruptly; that by reason of the termination he was thrown into hardship and disorientation of gargantuan proportion. Under cross examination, Claimant testified that he joined the Defendant on 18/4/83; that he was given a letter of employment; that he also signed a contract of service with the Defendant which contract contained provision that either party can terminate the contract; that he was aware some staff voluntarily left service of the Defendant; that the Defendant issued him a memo that he committed an offence and that the next step taken by the Defendant was the letter of termination. According to the witness, when he joined the Defendant he was a School Certificate holder. He stated further that promotion would usually be communicated through a letter; that Management was responsible for promotion at his level; that Management communicates promotion to Head of Human Resources while Head of Human Resources communicated same to staff concerned; that he was promoted in 2008 and that he left the Defendant in 2012; that between 2008 and 2012 he was not paid his promotion dues and that he was not paid all his terminal benefits. According to the witness, when he debited the Account of Mr. Nwaruocha Felix the account was well funded; that it was a year after that he discovered that the account was no more buoyant; that his gratuity has been paid to him; that the Defendant referred him to his Pension fund administrator (PFA) for his pensions and that the Defendant informed him that his pensions would be remitted to his RSA with his Pensions Funds Administrator. In re-examination, witness stated that the purpose of query is to determine who is guilty and who is not; that he responded to the memo in form of query issued to him; that he pointed out the process of the said transaction because it was not a normal Bank transaction; that after that he was not called for any interrogation and that up till now his pensions have not been paid. The Defendant opened its defence on 28/5/14 when it called one Anthony Nsoro as its lone witness. Witness adopted his written statement on oath dated 4/4/14 as his evidence, confirmed Exh. AOT6 and Exh. AOT13 as the documents referred to in paragraph 16 of his statement on oath and urged the Court to dismiss the case of the Claimant. The Defendant’s case is that the Claimant’s employment was properly and lawfully terminated in accordance with the contract of service of the Claimant; that indeed the Claimant committed an act of negligence when he approved the withdrawal of N400,750 from the Account of one Nwaruocha but failed to reflect the transaction online to show the status of the account before the further transaction of N1m by the said customer which made the Account run into negative balance, an act in violation of the defendant’s policy. It was the case of the Defendant that the Claimant was neither punished nor did the act form the basis of the decision of the Defendant to terminate Claimant's employment; that the claimant’s employment was terminated for reason that the claimant’s services were no longer required and not on the basis that the claimant failed to carry out his duties diligently and that it paid the claimant one month salary in lieu of notice in accordance with the terms of the contract of service executed by the parties. Under cross examination, witness stated that he did not know the Claimant; that he only met him in Court; that Claimant was a sub-manager with Defendant; that the last post held by the claimant with the defendant was sub-manager and not Assistant Manager and that the person who signed Exh AOT3 had capacity to so sign such letter. According to witness Defendant has a pension scheme as well as contributory pension; that Contributory pension scheme stopped a long time and that Claimant started contributing to the scheme from when the scheme came into being. It was the testimony of the witness under cross examination that Defendant does not allow anybody to overdraw any account without Management's approval but Mr. Nwarocha a staff of Defendant overdrew his account while in the employ of Defendant; that as soon as such error was discovered query would follow; that such an error could be noticed by any staff of Defendant; that in case of Mr. Nwarocha the error was discovered about a year after and that discovering the anomaly after about a year did not indicate that the Defendant was porous. Witness stated further that the account overdrawn was not Claimant’s account; that he thought the Claimant authorized the transaction that led to the overdrawn account; that usually the system ought to give an alert when an account is underfunded to allow a particular transaction; that he was not aware any log that records such an alert when raised by the system that Claimant’s employment was not terminated based on Exh. AOT20 and that the overdrawn account was human error. Parties closed their respective case on 28/5/14 and learned Counsel were directed, in accordance with the Rules of Court to file their final written addresses. Defendant's final written address was filed on 8/7/14. In it learned Counsel set down the following issues for determination - 1. Whether the Claimant's employment was properly terminated by the Defendant in the circumstance of this case? 2. Whether the Claimant was promoted to the rank of Assistant Manager to be entitled to receive salaries and gratuity commensurate to that level? 3. Whether the Claimant's pension is payable by his Pension Funds Administrator and not the Defendant? 4. Whether the Claimant has proved the outstanding leave to be entitled to it? 5. Whether the Claimant has successfully proved 'redundancy' in the suit to be entitled to his claim? 6. Whether the Claimant is entitled to =N=50M damage for arbitrary and unfair termination of his employment? 7. Whether the Claimant is entitled to award of =N=20M as cost of action? On issue 1, learned Counsel submitted that an employee who complains of wrongful termination of his employment must put his letter of employment and contract of service in evidence and then prove in what manner the terms were breached, citing Ayorinde v. Oyo State Government (2007)All FWLR (Pt. 356) 709 at 722; Borishade v. NBN Limited (2007)1 NWLR (Pt. 1015) 217 at 234 and Amodu v. Amode (1990)5 NWLR (Pt. 150) 356. Learned Counsel pointed out that the Claimant did not place the terms and conditions of his service contract before the Court and that neither did he tender his letter of employment or contract of service during trial. Arguing further, learned Counsel submitted that the law is trite that either party can determine a contract of employment. Counsel cited Idinuboye-Obu v. NNPC (2003)2 NWLR (Pt. 805) 589 and Olaniyan & Ors. v. University of Lagos & Anor. (1985)2 NWLR (Pt. 9) 599. On the argument of the Claimant that his employment was terminated due to the allegation of misconduct leveled against him, Counsel submitted that the letter of termination is already before the Court as exhibit. Counsel thus urged the Court to interpret the letter in the literary manner it was written, citing NDIC v. Okem Enterprises Limited (2004)10 NWLR (Pt. 880)107 and NDIC v. Belko Nigeria Limited (2006)All FWLR (Pt. 336) 40. Learned Counsel further submitted that the recommendation contained in the Staff Disciplinary Issue could not have been the basis of the Claimant's termination of appointment in view of the fact that the letter of termination preceded the recommendation and that in any event no existence of motive or improper motive can vitiate a properly terminated contract of employment relying on John Holt Ventures Limited v. Oputa (1996)9 NWLR (Pt. 470) 101 at 117-118. Counsel submitted that a month's salary in lieu of notice was paid to Claimant's Account which he accepted; that Claimant cannot therefore complain, citing Morohunfolu v. Kwara State College of Technology (1990)4 NWLR (Pt. 145) 506 and that since the Defendant exercised its right under the contract of service to terminate Claimant's employment, the Defendant had no duty to accord the Claimant right to fair hearing relying on Nwobosi v. ACB Limited (1995)6 NWLR (Pt. 404) 658 at 674. Concluding argument on this issue, learned Counsel submitted that where an employer properly determines a contract of employment, it does not amount to redundancy and any claim for redundancy must fail. Learned Counsel therefore urged the Court to hold that the Claimant's employment was properly and lawfully terminated. On whether the Claimant was promoted to the rank of Assistant Manager to be entitled to receive salaries and gratuity commensurate to that level, learned Counsel submitted that the last position held by the Claimant was a sub-Manager. Counsel submitted that the onus was on the Claimant to prove his assertion that he was Assistant Manager and that the onus of proof is on the party whose claim will fail if not proved. Counsel cited Udeze v. Chilebe (1990)1 NWLR (Pt. 125) 141 at 158 and Cardozo v. Daniel (1986)2 NWLR (Pt. 20) 1. According to learned Counsel, Claimant relied on the letter dated 23/1/08 a letter recommending him for promotion and a letter dated 12/6/08 which was a letter transferring Claimant to Finance & Planning Department. Counsel submitted that these letters did not prove Claimant's assertion and that Claimant ought to show by his pay slips for the last 6 months or other document such as internal memo that he indeed acted as Assistant Manager. Counsel thus urged the Court to hold that not having proved his claim to promotion his reliefs b and c should fail. On issue 3, learned Counsel conceded that the Claimant is pensionable. Counsel referred to paragraph 30 of the Defendant's statement of defence, sections 8, 12(1) & (3) and 39(1) of the Pension Reforms Act, 2004 as well as Exh. AOT13 and submitted that Claimant's pension is payable by his Pension Funds Administrator in accordance with the provision of the Act. In this respect, Counsel submitted that Claimant's reliefs d and e are liable to be dismissed. Issue 4 is whether the Claimant has proved the outstanding leave to be entitled to it. Learned Counsel submitted that the Claimant has the onus of proof of this and that Claimant has not discharged same. According to Counsel, Claimant's claim for outstanding leave for two years 2006 and 2007 is in the realm of claim for special damages citing Ehalor v. Idahosa (1992)2 NWLR (Pt. 223) 323 and that a claim for special damages must be pleaded, particularised and strictly proved to be entitled to same. Counsel relied on ISC Services Limited v. G.C. Limited (2006)6 NWLR (Pt. 977) 481. According to Counsel the claim must fail Claimant not having particularised same. Counsel urged the Court to so hold. Issue 5 is whether the Claimant has successfully proved 'redundancy' in the suit to be entitled to his claim. Learned Counsel submitted that if the Court finds that the Defendant has power to hire and fire the Claimant in law, then the Claimant is not entitled to redundancy claim since the Defendant merely exercised its power under the contract of service. According to Counsel, the Defendant stated in the letter of termination that the Claimant's services were no longer required and not on ground of redundancy; that Defendant never at any time declared the post of the Claimant redundant and that no employee is entitled to both retirement and redundancy benefits as the Claimant seeks to do. Counsel relied on Isheno v. Julius Berger (Nig.) Plc (2008)All FWLR (Pt. 415) 1632 at 1654 and P.A.N v. Oje (1997)11 NWLR (Pt. 530). Counsel urged the Court to hold that the Claimant is not entitled to a redundancy claim. Issue 6 is for the determination of whether the Claimant is entitled to a =N=50M damage for arbitrary and unfair termination of his employment. On this issue learned Counsel submitted that if the Court resolves Issue 1 in favour of the Defendant, the Claimant's relief i must fail. It was the position of learned Counsel that the Claimant has failed to prove the contract between him and the Defendant and the manner in which the contract was breached; that the employer must be deemed to have acted properly when exercising its right of termination of employment until the contrary is proved and that in the absence of this proof, the Claimant is not entitled to his claim for damages. Counsel cited Nigerian Gas Co. Limited v. Dudusola (2005)18 NWLR (Pt. 957) and NITEL Plc v. Akwa (2006)2 NWLR (Pt. 964) 391. Issue 7 is whether the Claimant is entitled to award of =N=20M as cost of this action. Learned Counsel submitted that the cost being claimed here is not the one that follows event but rather a relief on its own. According to Counsel, for any relief to be granted by the Court, it must be supported by averment in the pleading. Counsel submitted that Claimant did not plead or place any fact before the Court in support of his claim. Counsel, referring to Mojekwu v. Mojekwu (1997)7 NWLR (Pt. 512) 283 at 367, Keyamo v. LSHA (2002)18 NWLR (Pt. 799) 605 at 615, Okolo v. UBN Limited (1998)2 NWLR 618 and Section 135, Evidence Act, 2011 prayed the Court to resolve this issue in favour of the Defendant same not having been proved by the Claimant and dismiss all the reliefs sought by the Claimant. Learned Counsel to the Claimant filed his final written address on 14/10/14. Counsel set down the following 7 issues for determination - 1. Whether or not the Letter of Employment encompasses the totality of terms and conditions which constitute due process in the lawful termination of employment? 2. In the light of evidence led before the Court, whether or not the employment of the Claimant was terminated for disciplinary reason(s)? 3. Having regard to the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999, whether or not the fair hearing right of the Claimant was impaired? 4. Having regard to the evidence before this Court, whether or not the Claimant's last held position whilst in the employment of the Defendant was Assistant Manager? 5. Where the issue 4 above is resolved in the affirmative, whether or not the Claimant was short paid as to the sum of =N=5,405,410 being the differential sum unpaid but payable to the Claimant whilst in the employment of the Defendant between 12th June 2008 and 17th February, 2012? 6. Furthermore, where the issue 4 above is resolved in the affirmative; whether the Claimant was not short paid in lieu of his gratuity payment with the outstanding sum of =N=2,231,080 not yet paid to the Claimant. 7. Whether or not the Claimant is entitled to damages and other reliefs sought in this action in lieu of the arbitrary and unfair termination of the Claimant's employment, and deliberate under payment of wages, gratuity and pensions commensurate with the last post held by the Claimant in the employment of the Defendant? On issue 1, learned Counsel submitted that beyond letter of employment, there are extant collateral documents which essentially contained fundamental terms and conditions which guide the employer-employee relationship between parties in the pendency of the Claimant's employment with the Defendant Bank. Counsel referred specifically to Exh. AOT7 - Union Bank Staff Manual and that this formed part of the terms and conditions of employment between the parties. Counsel cited Cooperative & Commerce Limited & Another v. Kenneth C. Okonkwo (2002) FWLR (Pt. 97) 637; Olaniyan v. University of Lagos (1985)2 NWLR (Pt. 9) 599 and FCSC v. Laoye (1989)4 NWLR (Pt. 106) 652. Counsel urged the Court to so hold. Issue 2 is, in the light of the evidence led before the Court whether or not the employment of the Claimant was terminated for disciplinary reason(s). Counsel argued that the Claimant both in pleading and evidence in chief maintained that the termination of his employment was a culmination of a disciplinary action taken against him by the Defendant pursuant to a certain overdrawn account in the Bank; that Claimant tendered Exh. AOT20 a circular issued by the Defendant after Claimant's employment was terminated stating unequivocally that Claimant and others employments were terminated for disciplinary issues and that Defendant had not rebutted the veracity of the content of the said exhibit. Counsel prayed the Court to hold that the Claimant's employment was terminated on the basis of disciplinary issues. On issue 3, Counsel cited section 36(1), Constitution of the Federal Republic of Nigeria 1999. He submitted that having alleged that his constitutional right to fair hearing was infringed upon by the fact that he was not afforded opportunity to be heard on the incident leading to the termination of his employment, the Court should protect the right. According to learned Counsel, no query was issued to the Claimant nor any hearing forum or panel constituted to hear the Claimant over determination of a matter which had grave disciplinary consequences. Counsel submitted, citing Nigerian Gas Company Limited v. Unuavwodo (2003) FWLR (Pt. 169) 1196 (CA), that where termination of contract of employment violates the principle of natural justice, the plaintiff would be entitled to remedy upon seeking to enforce his right. Counsel prayed the Court to, in so far as monetary compensation would assuage the injury suffered by the Claimant seeking redress, award damages as reparation for wrongful act and for all natural and direct consequences of the wrongful act. With respect to issue 4, learned Counsel pointed out that the determination of this case rests on Exh. AOT3. Counsel submitted that by that exhibit the Defendant promoted the Claimant to the post of Assistant Manager in its services and that the Claimant had no further obligation to prove any fact as to whether or not he rose to the post of Assistant Manager whilst in the Defendant's employment and that the Claimant did not waive his entitlement by virtue of his new post hence the present suit. Counsel further submitted that the lone reference in Exh. AOT20 which described the Claimant as a sub-Manager rather than Assistant Manager was a mere after thought and in bad faith and that there was no material before the Court that the Claimant was demoted. Counsel urged the Court to resolve this issue in favour of the Claimant. Learned Counsel argued issues 5 and 6 together and in doing so adopted the argument advanced in respect of issue 4. Counsel submitted that Claimant has put forward sufficient evidence to warrant judgment in his favour. According to learned Counsel, although the defence made spirited efforts to deflate the evidence adduced by the Claimant advocacy of Counsel could not take the place of evidence, citing Gbabida v. Marcus (2003) FWLR (Pt. 139) 1451 and Owhonda v. Ekpechi (2003) FWLR (Pt. 181). Counsel urged the Court to find for the Claimant. On issue 7, learned Counsel submitted that damages only and nothing else but damages remain the only remedy to appease an employee whose employment was wrongly terminated. Counsel cited UBN Plc v. Chinyere (2010)10 NWLR (Pt. 1203) 453 & UBN Plc v. Okoror (2002) FWLR (Pt. 122) 27. Learned Counsel thus prayed the Court to award damages to the Claimant as sought. On 28/10/14, learned Counsel to the Defendant filed a 9-page Reply on points of law. What the learned Counsel did was to take each of the 7 issues set down for determination and argued by the Counsel to the Claimant and then reargued same seriatim. I find nothing new in this so-called reply on points of law to warrant inclusion in this Judgment. I may also add that I find it difficult to regard the said Reply on points of law as such. The fact remains that Reply on Points of Law is usually meant to address new or fresh issues of law raised in the Claimant's address. Reply on points of law is neither meant for nor design to offer an opportunity to a Counsel to reargue his case. This Judgment was initially slated to be delivered on 22/1/15. Unfortunately, the Judiciary Staff Union of Nigeria (JUSUN) embarked on an industrial action from 5/1/15 to 25/1/15. Although this Judgment was ready as at that date for delivery it could not be delivered due to the reason stated. Hence Hearing Notices were issued and served on Counsel to attend Court today for this Judgment. I have read with understanding all the processes filed by learned Counsel on either side of this case including their final written addresses. I listened to the testimonies of witnesses called at trial and watched their demeanour and evaluated all the exhibits tendered and admitted. Having done all this, I have come to narrow the issues for determination in this case to be as follows - 1. Whether the employment of the Claimant was properly terminated by the Defendant. 2. Whether the Claimant was promoted to the rank of Assistant Manager by the Defendant to be entitled to receive salaries and gratuity commensurate to that level. 3. Whether the Claimant is entitled to a grant of the reliefs sought. The law is trite that in a claim for wrongful termination of employment, the onus is on the Claimant to put forward the letter of his employment containing the terms and conditions of the contractual arrangement. On the other hand, the Claimant may put forward his contract of service which must also contain the contractual terms and conditions agreed to by the Employer and the Employee. It is thereafter incumbent upon the Claimant to prove to the Court the terms and conditions of his employment; the manner of how his employment may be terminated and how the employer has failed to comply with the manner for termination as contained in either the letter of employment or the contract of service, see Emokpae v. University of Benin (2002)17 NWLR (Pt. 795). This is a fundamental issue, see University of Calabar v. Essien (1996) LPELR-3416 (SC). See also Organ & Ors. v. Nigeria Liquidified Natural Gas Limited & Anor. (2013)LPELR-20942 (SC). The Claimant in the instant case did not tender before me any letter of his employment or a contract of service between him and the Defendant. No reason was also offered as to why no such document was produced to assist the Court in the determination of this case. If tendered, the letter of employment or contract of service would have at least stated the requisite period of notice to effect termination. In this case however, the Claimant tendered Exh. AOT6. It is a letter of termination of employment from the Defendant to the Claimant and dated 17/2/12. By the letter the Claimant was informed that his services were no longer required effective from the date of the letter and that the Claimant's account has been credited with a month's salary in lieu of notice. Exh. AOT13 is evidence of payment of the Claimant's terminal benefit in the sum of =N=8,230,720.00. Also by the same Exhibit, Claimant was informed that in line with the Pension Reform Act 2004, outstanding balance of the Claimant's pension contributions would be remitted to his Retirement Savings Account with his Pension Funds Administrator. On the basis of the foregoing evidence which I have no reason to disbelieve it is safe for me to declare and I here declare that the employment of the Claimant was properly terminated by the Defendant. Claimant had argued that the termination of his employment was due to disciplinary issue and that he was denied fair hearing. Claimant relied on Exh. AOT20 titled Staff Disciplinary Issues, in support of his position. It is important for me to point out that Exh. AOT20 was dated 18/1/12 and that as at that date the Claimant had ceased to be a staff of the Defendant his employment having been effectively terminated on 17/1/12. The law is trite that an employer is not under any obligation to offer any reason for the termination of his employee's employment. Where therefore an employer simply states that an employee's services are no longer required, the Court will not inquire as to the rationale behind that decision. For to do so will amount to questioning the right of either party to terminate a contract of employment voluntarily entered into without the intervention of the Court. In any event, the Court will not and cannot inquire as to the reason for an employee to tender a letter of resignation to his master. For Exh. AOT20 to be of relevance to support of the case for the Claimant it must have predated the date of termination of his employment. It is not open to the Claimant to place reliance on document which emanated from his employer after he ceased to be the latter's employee in support of a case for wrongful termination of his employment. I so find and hold. Claimant had equally contended that he was denied fair hearing in events leading to the termination of his employment by the Defendant. This argument is a misplacement or misconception of the position of the law. The constitutional right to fair hearing is neither a magic wand nor a sword of Damocles which will entitle a party to what he is not entitled to. The right to terminate an employment is an inherent right conferred on either party to an employment contract. While an employer may exercise the right through either termination or dismissal of an employee, an employee may as well exercise same via resignation of appointment. In so doing neither party is under any obligation to seek the consent of the other party that it or he wants to terminate the employment. Thus, a claim of violation of the right to fair hearing does not arise in the exercise of the right to bring a contract of employment to an end. From the foregoing, I hold that the termination of the employment of the Claimant by the Defendant was properly done; that the termination was not due to disciplinary issues and that the Defendant did not breach the Claimant's constitutional right to fair hearing. The second issue is whether the Claimant was promoted to the rank of Assistant Manager by the Defendant to be entitled to receive salaries and gratuity commensurate to that level. The onus for the proof of this remains on the Claimant who must lose if not proved. For the law is trite that he who asserts must prove. See Geneva v. Afribank Nigeria Plc (2013) LPELR-20662 (SC) and Section 131, Evidence Act 2011. In proof of his assertion, Claimant tendered Exh. AOT2 and Exh. AOT3. The former exhibit was a letter of recommendation for promotion to Assistant Manager in respect of the Claimant. It was dated 23/1/08. The latter exhibit was a letter of transfer of the Claimant to Finance & Planning Department. It was dated 12/6/08. The first paragraph of that exhibit states thus - 'We are please to advise that as part of the ongoing organisational restructuring, Management has approved your redeployment to the Finance & Planning Department as Assistant Manager, Budget & Planning''. I find the two documents as neither credible nor sufficient enough to support the assertion of the Claimant. I hold that letter of recommendation is not the same as letter of promotion neither is a letter of transfer conveying the same meaning as a letter of promotion. The Claimant tendered a total of 21 documents in support of his case. Majority of those documents emanated from the Defendant. It shows, among other things, that the Defendant communicates in writing to its employees. Thus, the Claimant would have been issued a letter of promotion as evidence of the act of the Defendant promoting him to the position of Assistant Manager. There could have at least been some form of internal memo announcing the promotion of the Claimant to the position asserted. Besides, evidence of being paid salary of Assistant Manager would have as well sufficed to show that indeed the Claimant was promoted to the position of Assistant Manager and was remunerated accordingly. The position of the law remains that he who asserts must prove. That position has not changed. It is doubtful if that position will change in the Nigerian legal jurisprudence even in the near future. Claimant has not proved his assertion of being promoted to the position of Assistant Manager, I thus hold that there is no evidence before me to prove that the Claimant was promoted to the position of Assistant Manager to be entitled to receive salaries and entitlement commensurate to that level. Issue 3 is whether the Claimant is entitled to a grant of the reliefs sought. The entitlement of the Claimant to the reliefs sought is predicated on the resolution of issues 1 and 2. Having resolved issues 1 and 2 against the Claimant, there is no basis upon which this issue will not also be resolved against him and I so do. I hold that from the evidence adduced before me both oral and documentary the Claimant is not entitled to any of the reliefs sought same not having been proved. Finally and for the avoidance of doubt the three issues set down for determination are resolved against the Claimant and in favour of the Defendants. All the claims of the Claimant fail and are dismissed accordingly. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge