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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE OYEWUMI.O.O DATED 24TH OF FEBRUARY, 2015 SUIT NO: NICN/LA/601/2013 BETWEEN OGUNJOBI TAJUDEEN ABIOLA - CLAIMANT AND EMZOR PHARMACEUTICAL INDUSTRIES LIMITED - DEFENDANT REPRESENTION- Deborah E. Oni (Mrs.) with her is Olufemi Ajiboso for the claimant T.A Ojedokun with him is Kunle Adekoya for the defendant JUDGMENT The claimant by a general form of complaint, on the 12th of November, 2013 filed against the defendant praying the following reliefs; i. DECLARATION that the handing over of the claimant by the defendant to the police for prosecution was illegal, wrongful, unjust disregard for truthfulness and inhuman treatment. ii. DECLARATION that the claimant is still a staff of the defendant and is entitled to the payment of salary from 1st March, 2011 to date. iii. DECLARATION that the continuous refusal of the security officers of the defendant to allow the claimant access to the company to continue with his work is illegal, unconstitutional and amount to breach of contract of employment between the claimant and defendant by the defendant. iv. AN ORDER directing the defendant to reinstate the claimant as her staff and upgrade him to his expected post. v. AN ORDER directing the defendant to pay salary of the claimant from March2011 to date at the rate of Eighty Four Thousand, Three Hundred and Thirty Six Naira and Sixty Four Kobo(N 84,336.64) per month 1st of March, 2011 to date. vi. AN ORDER directing the defendant to pay N1,500,000.00 (One Million and Five Hundred Thousand Naira) as legal fees to the claimant’s legal counsel as legal services concerning this suit. vii. AN ORDER directing the defendant to pay Five Million Naira only (N 5, 000,000.00) to the claimant as compensatory and special damages for the direct and consequential losses suffered by the claimant during the period he was not paid salary. viii. AN ORDER directing the defendant to pay Seven Million Naira only (N 7, 000,000.00) as general damages for the pains suffering and loss of amenity suffered by the claimant. It is the case of the claimant that he was employed by the defendant on 4th September, 2006 as a store supervisor vide a letter of employment dated 9th of August, 2009. He was at various times promoted as a result of his hard work. He was further promoted to the position of the Assistant Manager. That on the 5th day of March, 2011 one Mr. Franklin Duru sent one Mr. Friday Onojato to invite the claimant to security post to sign the approved overtime sheet being the only manager around who could do it. The claimant averred that he saw the company bus Hummer bus with registration no Lagos XT 690 EKY that was parked at the loading bay when he resumed work but did not see same when he was going to the security post. The claimant knew that by practice, the vehicle was supposed to be there or if it will go out, there were official papers the driver must process. The claimant made enquiries and report which got to his Head of Materials and the Deputy Managing Director who authorized the Chief Security Officer to demobilize the bus and this made it possible for the defendant to retrieve its goods at Mile 2 Lagos where it was found. Claimant averred that despite his patriotic act, the defendant arrested him with police officers. The claimant and nine others approached the High Court to enforce their fundamental human rights. The claimant resumed at the defendant’s place but on 13th of May, 2011 he formally indicated his intention to continue working in compliance with Section 36 of employee’s handbook. The letter was collected but was not acknowledged and he was also denied access into the premises of the defendant. The claimant averred that he became financially bankrupt and also approached the defendant’s cooperative society for withdrawal vide a letter dated 16th, May 2011. He was denied access into the premises of the defendant, the secretary refused to sign the acknowledgment copy of the letter but acted on it later by given the defendant cheque for his withdrawal. Claimant instructed his solicitors to institute an action against the defendant in the Magistrate Court and on the23rd of November, 2012 he was vindicated by the ruling delivered by the Chief Magistrate Adesola Ikpatt C.T (Mrs.). Sequel to his vindication at the Magistrate Court, by a letter dated 6th of December, 2012 he demanded for payment of his salary in arrears, payment of his cooperative contributions and resumption of duty. On the 17th December, 2012 defendant accepted all facts as written in the claimant’s letter but however, refused to reinstate him. Claimant stated that he has suffered a lot and lost his dignity and prestige for an offence he did not commit. The claimant during trial testified for himself as CW, he tendered documents which were admitted and marked as Exhibit TA1-TA16. It is the case of the defendant that the claimant was promoted to the post of an officer on 1st January, 2007 via a letter dated 25th April, 2007 and also to the position of an Assistant Manager on January, 2008. Defendant averred that on the 5th day of March 2011, some of it staffs conspired and indeed steal some of the defendant products and its vehicle with registration no XT690 EKY. That it was the claimant who discovered the theft of the said goods and vehicle. That upon discovery of the theft, the deputy Managing Director instructed the Chief Security Officer to quickly demobilize the stolen vehicle and quickly lodged a complaint of the theft to Aswani police station Isolo, Lagos. In course of the police investigation, some of the defendant’s staffs were arrested they include; store personnel, audit staff, drivers and security men including the claimant and promptly recovered the stolen goods and vehicle. Defendant averred further that the arrest and detention of suspects was entirely the act of the police and not the defendant’s as the defendant did nothing more than lodge a report of the theft to the police station. Defendant admitted that the claimant reported to the defendant’s premises to resume his duties on the 13th of May, 2011 but without the purported letter claimant’s claims indicating his intention to resume work in compliance with section 36 of the defendant’s handbook and he was not denied access into the premises by the security men. Defendant denies that the claimant wrote a letter of withdrawal dated 16th of May, 2011 and denies that its staff collected and refused to acknowledge any letter from the claimant dated 13/05/2011 and 16/05/2011. Defendant continued that since the claimant was granted bail on 5/03/2011, he never reported nor applied to the defendant to resume work in accordance with the provisions of the staff handbook and such act is tantamount to being absent from work or dereliction of duty and a ground for dismissal in the defendant's handbook. The defence went on that the cheque issued to the claimant dated 4th February, 2013 was in recognition of the fact that claimant was no longer in the employment of the defendant and not in recognition that the letter written by the claimant to withdraw which was not even received by the defendant. Defendant averred that a letter of dismissal dated 9th of August,2012 was given to the claimant and other defendant arraigned at the Magistrate Court. The letters were received by all of them but some of them including the claimant refused to acknowledge same. That it is not responsible for all inhumane treatment and psychological trauma claimant claims to have under-gone. The defendant states that the claims of claimant against it is speculative, vexatious and lacking merit and same should be dismissed with substantial cost. The defendant during trial testified through his Chief Security Officer as DW, he tendered documents which were admitted and marked as Exhibit ED1-ED2. The claimant on the 10th of April, 2014 filed a reply to defendant’s amended statement of defence wherein he joins issues with the defendant on paragraph 5, 6, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 and 36 inclusive of the amended statement of defence. The Claimant admits paragraph 2 of the amended statement of claim. The Claimant admits paragraphs 17 and 18 to the extent that the Claimant reported for work on 13th May, 2011 but denies all other averments in paragraphs 17 and 18. That it was the Claimant who facilitated the report of the theft to the Deputy Managing Director who instructed the Chief Security Officer of the Defendant to demobilize the vehicle used for the illegal operation. That in contrary to paragraphs 10, 11, 12, 13 and 14 of the amended statement of defence, the Defendant management listed the names of her staff to be arrested by the police including the name of the Claimant because police officers are not members of her staff. He traversed that despite the insistence of the Defendant to arrest and charge the claimant, the Claimant was penciled down as prosecution witness by the police but the Defendant disagreed with the police and directed the police to charge the Claimant for stealing. That the security officers actually turned the Claimant back on the instruction of the Defendant because he was charged to court for stealing which the Magistrate Court struck his name out. That the document dismissing him is dated 9th August 2012, 15 months after he was turned back by the Defendant's security officers was an afterthought. That he was not absence from work without permission or dereliction of duty. Claimant averred that contrary to paragraphs 26 and 27 of the amended statement and perusing the reply of one Omowumi Odejobi will confirm that the Defendant did not deny the claims of the Claimant in the letter he wrote to the Defendant. He also averred that the Cooperative Society of the company is independent of the company as indicated in the reply letter dated 17th December 2012 in response to the Claimant's letter dated 6th December, 2012. That the cooperative cheque was not issued to recognize claimant as an ex staff of the company because the Claimant in exercise of his right of association withdrew from the cooperative society willingly to alleviate the effect of his suffering. That in contrary to paragraph 29 of the amended statement of defence, the Claimant states: a. The Claimant was not given any letter of suspension or letter of dismissal. b. The Defendant did not serve any letter of dismissal on the Claimant and at the trial of this suit. c. The Defendant confused itself when it said it terminated the Claimant appointment on 13th May 2011 and wrote a letter of termination on 9th of August 2012. d. The said letter of dismissal was concocted, factitious, insincere, invented and after thought to escape justice by the Defendant. e. The Defendant, which is a criminal offence, forged Duru Franklin signature and the Defendant is called to the strictest proof of the same. Claimant averred that he is still a bonafide staff of the Defendant because he has not breached any law in the handbook of the Defendant, he was never suspended nor dismissed by the Defendant. That the injustice melted on him by the defendant caused him psychological. The Claimant urged the Court to disregard and discountenance defendant’s amended Statement of Defence and enter judgment in his favour. The defendant on the 18th of August, 2014 filed its final written address to the court wherein it distilled two issues for the court’s determination. 1. Whether the refusal of the Defendant's security Officers to allow the Claimant access to the Company to continue with his work is a breach of the contract of employment between the Claimant and the Defendant, and 2. Whether the Claimant is entitled to his claims before this Honourable Court On issue one counsel submitted that it is by consent of parties to this suit that the Contract of Service of the Claimant is regulated by his letter of employment (Exhibit TAl) and the Staff Handbook of the Defendant tendered as "Exhibit TA15." Thus parties are bound by the content of the said Exhibits. He cited the case of ALHASSAN V. A.B.U., ZARIA [2011] 11 NWLR (PT. 1259) PG 417 AT PG. 470, PARAGRAPH C – D. Counsel further submitted that upon the release of the claimant on bail following his arrest on 5/3/11 he abandoned his employment by his failure to resume work which led the Defendant's management to give instructions to its staff not to allow the Claimant access to the Defendant premises or to resume work because he has been dismissed. Counsel also submitted that the Claimant failed to write letter for permission to be allowed to resume work after his release on bail by the Police. Thus the period between 5/3/11 or 11/3/11 and 13/5/11 when the Claimant testified that he reported at the Defendant's company but was not allowed to resume work was more than three (3) days prescribed in Section 35 of the Defendant's Staff Handbook ("Exhibit TA15") when an employee will be regarded as having abandoned his employment. Continuing, counsel submitted that, the claimant in prove of compliance with Section 36 of the Defendant's Staff Handbook ("Exhibit TA15"), tendered "Exhibit TA5" that is the letter the Claimant claimed that he took to the Defendant's company on 13th May, 2011 when he was refused entry into the Defendant's premises and also claims that the said letter (Exhibit TA5) was received from him but the Defendant's staff refused to acknowledge same. Counsel stated that the Claimant must have forgotten that he also tendered Exhibit TA10 and TA 11. At page 2 paragraph 2 of Exhibits TA10 and TA11, he wrote thus: "Not minding what I went through. I reported at the company to resume my duties on 25th April, 2011 and was turned back by the Security Officers. On this particular day, I demanded to see my Head of Department, the Human Resource Manager (Mrs. Tina O.) and the Deputy Managing Director who knew the true story. The Security Officers told me the company had instructed them not to allow me to enter the company premises because I have been charge to court. On the said date, I submitted my letter of intention to continue working to the security officer who bluntly refused to sign the acknowledgement copy." Counsel posited that it is clear and contrary to the Claimant's pleadings and evidence that he reported to resume work on 13/5/2011. Exhibits TA10 and TA11 tendered by him stated that he reported to resume work on 25/4/2011. Counsel submitted that the above contradictions show that the Claimant's evidence is all tissues of lies, which the Court cannot not believe or rely upon. Counsel urged the Court to hold that the correct position is that the Claimant did not come to the Defendant's company with any letter of intention to continue working on 13/5/2011 and that the Defendant's officers did not refuse to acknowledge any such letter. Defence counsel argued that it is the Claimant who breached the contract of employment between him and the Defendant. The Claimant was in breach when as it is apparent that he did not apply to the company for permission to return to work as required by Section 36 of Exhibit TA15. Counsel stated that Section 36 of Exhibit TA15 gives the Defendant discretion to choose to allow an employee released on bail to resume work or not to allow him to resume work by the use of the expression "if allowed to return to work” Also Section 35 of Exhibit TA15 also provides in part thus: "And (sic: Any) employee who absents himself from work for 3 days without permission will be regarded as having abandoned his employment and will be dismissed." It is crystal clear that from 5/3/11 when the Claimant was released on bail or 11/3/11 (as the Claimant wants the Court to believe) till 13/5/11 when the Claimant was not allowed to enter Defendant's premises nor to resume work and was told by Defendant's staff that he has been dismissed, the three days required by section 35 of "Exhibit TA15" had elapsed. It is trite Law that notice/letter of termination/dismissal need not be in writing. It may be oral or by conduct. More importantly there is nothing in the contract of employment of the Claimant (Exhibit TAl) and the Staff Handbook (Exhibit TA15) and provision of Section 35 which stipulates the form the dismissal must take (i.e whether it must be in writing or oral or by conduct). Counsel cited the case of IFETA V. S.P.D.C. (NIG.) LTD. [2006] 8 NWLR (PT. 983) PG. 585 AT 617 PARA C AND PG. 621 PARAS G-H Counsel further submitted that the Defendant's staff informed claimant of his dismissal on 13/5/11. When the opportunity arose the Defendant also served the Claimant and others charged at the Magistrate Court with formal letters which clearly show that they were dismissed as at March, 2011 (see Exhibit Dl and D2). In response to the Claimant's letters in Exhibits TA10 and TA11, the Defendant also informed the Claimant of his dismissal as at March, 2011 in Exhibit TA12. Thus the Claimant was never in doubt of his dismissal by the Defendant before the institution of this suit. Counsel urged the Court to resolve this issue in favour of the Defendant. It is the submission of counsel on issue two, that the Claimant's claim i (one) above is not within the jurisdiction of the court. The jurisdiction of this court as contained in section 254 C (1) (a) to (m) of the Constitution of the Federal Republic of Nigeria (Third Alternation) Act, 2010 never vested jurisdiction in this court for a claim for declaration that handing over to the police for prosecution was illegal, wrongful, unjust, disregard for truthfulness and in human treatment as the Claimant is claiming in his claim (i) above. Thus counsel urged the court to strike out same. Counsel stated that claimant submitted in the alternative that a declaratory relief is not granted as a matter of course. The party who wants a court to grant a declaratory claim/relief in his favour must give credible evidence that will enable the court to grant the declaration sought. This is because a declaratory judgment is discretionary. It is a form of judgment which should be granted only in circumstance in which the court is of the opinion that the party seeking it is, when all the facts are taken into account, fully entitled to the exercise of the court's discretion in his favour. He cited the case of AKINYEMI V. ODUA INV. CO. LTD. (2012) 17 NWLR (PT. 1329) PG. 209 AT PG. 242, PARAS. C-D. The Claimant evidence in support of his claim i (one) is as contained in paragraph 40 of his Statement on Oath stated that the Defendant's Chief Security Officer in his Counter Affidavit and its accompanied written address to the case of Enforcement of Fundamental Right filed at the Federal High Court said the Claimant exposed the theft and never mentioned him as one of those who participated in the crime. That the said processes of the Defendant's Chief Security officer Corroborates and confirmed the fact that the Claimant exposed the theft and a perusal of the statements the Claimant made at the Aswani and State CID Police Command revealed that he was penciled down as a Prosecution witness as written on his witness Statement but according to the prosecutor, the Defendant insisted that he must be charged as a Defendant to the case of conspiracy and stealing at the Magistrate Court and that a further perusal of all statements made by all staff of the Defendant at the Police command did not indict him. The case and evidence of the Defendants witness is that they merely lodged a complaint of the theft at the Police Station. That they did not ask the Police to arrest or prosecute the Claimant and other staff of the Defendant that were arrested. The witness also confirmed the fact that the Claimant reported the theft to the defendant. The Defendant denied any liability for the acts of the Police to the Claimant. It is trite law that he who asserts must prove his assertion. The alleged Statements of the Claimant at the Aswani and State CID Police Command which, according to the Claimant, revealed that he was penciled down as a prosecution witness is not before the Court. The Statements of all Staffs of the Defendant which the Claimant claimed did not indict him were also not brought before the court. The prosecutor whom the Claimant claimed told him that the Defendant insisted that the Claimant must be charged to court was also not called as a witness. It is only the words of the Claimant against that of the Defendant. He submitted that the documentary and oral evidence before the court reveals that it was not only the Claimant that was arrested, as those arrested cuts across the store Department personnel, Transport Department, Personnel and Security Department Personnel of the Defendant. Counsel stated that Exhibit TA7 shows that about ten (10) staffs of the Defendant approached the Federal High Court, only four (4) of the Defendant staffs were eventually charged to court as can be seen from Exhibit TA9. Thus this clearly shows that it was the Police in their own discretion decided to Charge only four of the Defendant's staffs to court after their investigation. Counsel submitted that the Claimant has failed woefully to prove his entitlement to the declaratory Claim i (one) in his Claims before the Court as no credible evidence is before the court to substantiate same. Counsel submitted that as regarding claims (iii), it has been answered in the treatment in issue that there is no credible evidence to support the declaration sought in the said claim (iii). The prevention of the Claimant from resuming his work was not a breach of contract. Also in respect of claims ii, iv and v the Defendant respectfully submits that the relationship between it and the Claimant is purely an ordinary master and servant relationship. There is no statutory flavour in respect of the relationship between the parties. That the Defendant has the right to hire and fire the Claimant with or without any reason. The Claimant under cross-examination testified that he last worked for the Defendant on the 7th March, 2011. We humbly submit that an employee who did not work/render services for an employer is not entitled to any salary or wages. He cited in support the case of SPRING BANK PLC. V. BABATUNDE (2012) ALL FWLR (PT. 609) 1191 AT 1205, C-D. Counsel stated that by virtue of Section 10 of the Defendant's Staff Handbook (Exhibit "TA15"), the Defendant has a right to terminate the employment of the Claimant upon giving him One (1) month notice or payment of one (1) month salary in lieu of notice. Also page 2 of offer of Appointment given by the Defendant to the Claimant (Exhibit TAl) also confirms the right of both parties to terminate the appointment by given one (1) month notice or payment of one (1) month salary in lieu of notice. Hence if the court finds the dismissal of the Claimant to be wrongful, the Claimant will consequently be entitled to one month's payment in lieu of notice. Counsel submitted that regarding Claims vi, vii and viii the Defendant adopts her above submission in respect of claim (i) to the effect that she was not responsible for the arraignment/prosecution of the Claimant at the Magistrate Court or at this Court. That since the defendant was not responsible, the Defendant is not liable to pay legal fees incurred by the Claimant. The Defendant by its unchallenged evidence is also not responsible for any pain or suffering by the Claimant. The Defendant urged the court to resolve this issue in favour of the Defendant and to consequently dismiss the Claimant's Claims. The claimant on the 23rd of September filed his written address wherein he framed four issues for the court’s determination; 1. Whether the handing over of the claimant by the defendant to the Police for prosecution is illegal, wrongful, unjust, disregard for truthfulness and inhuman. 2. Whether the claimant is still the staff of the defendant and entitle to his salary up till date. 3. Whether the claimant is entitled to his claims and damages for wrong done to him by the defendant. 4. Whether the defendant has breached the contract of employment between it and the claimant. It is the submission of the claimant's counsel on issue one, that the defendant by paragraphs 7-9 of its statement of defence and in paragraphs 5-8 of its statement on oath admitted the facts averred by the claimant in paragraph 14 – 23 of his statement of facts. That it is the law that facts admitted requires no proof. He cited in support of this the case of AJIBOLU V AJAYI [2014] 2 NWLR (PT. 1392) P. 570. Continuing counsel submitted that DW by paragraphs 9 and 10 and during cross examination, corroborated the averment of the claimant in paragraphs 23, 24, 27 and 28. Counsel submitted that it is clear that the defendant reported the case of theft in her company and handed the claimant to the Police officers who arrested him. That no prima facie case was found against him at the Magistrate Court and that rendered the charge null and void and an exercise in futility. He cited the case of AMINU &ANOR V STATE [2005] ALL FWLR 933 AT 941. Counsel urge the court to hold issue one in its favour. Counsel treating issue 2 and 4 together submitted that the claimant is still an employee of the defendant as he has not been issued a letter of dismissal or termination from the defendant’s employment. Claimant visited the company of the defendant but he was denied access into the defendant’s place of business in compliance with section 36 of staff handbook and this assertion was corroborated by the DW under cross examination when he said that the claimant was dismissed. Counsel submitted that although the defendant can dismiss without reason but when reason is attached to a crime, the said offence must first be proved and dismissal can stand when he is found guilty thereof. Continuing he submitted that defendant can terminate the employment under section 10 of her staff handbook and by section 36 of the defendant’s handbook, which was misinterpreted by the defendant states that “if the employee is detained by the police or if a criminal charge is preferred against him…… if the employee is released on bail, he may apply to the company for permission to return to work” that the claimant has not been found guilty of any offence and it was in amended statement of defence that a letter of dismissal was concocted after the defendant became aware of its error. Counsel submitted that in a master servant relationship, a misconduct is what the employer deems as misconduct and the court will not look outside the documents containing the terms of the contract of employment in deciding the rights and obligation of the parties. He cited in support the case of C.B.N V ARCHIBONG [2001] FWLR (PT. 58) 1032 @1047. Counsel stated that claimant was not served the purported dismissal letter as the date DW claimed to have served him at the Magistrate Court was not part of the sitting days of the court. That the claimant on the 13th of May, 2011 reported at the defendant’s place to resume work but was not allowed into the premises by the security men because he has been charged to court for stealing. The DW in his statement of oath and under cross examination, stated that the claimant was dismissed and the purported letter of dismissal is dated 9th of August, 2012. He stated that it is clear that the testimony of the witness is contradictory to the letter written by the defendant to the claimant dated 9th of August, 2012. He cited the case of EKE V STATE [2009]; 3 NWLR (PT.1235)SC 589 @593. Claimant submitted that section 11of the staff handbook states that; “No employer who leaves the services of the company on disciplinary grounds would be considered for re-engagement, except under special circumstances…… ”Thus the issue of not foisting a willing employee on an unwilling employer does not apply here because his case falls under special circumstances as he did not commit the offence alleged against him. That where the dismissal of a servant is based on a criminal charge or allegation, such allegation must first be proved before the dismissal can stand. He cited the case of SAMSON BABATUNDE OLANREWAJU V AFRIBANK PLC [2001] FWLR (PT. 72) 2008. Counsel contended that claimant followed all laid down processes in the contract of employment but the defendant refused to follow same by refusing him to work despite his report for daily duty. He urged the Honourable court to resolve these issues in favour of the claimant holding that the claimant is still a staff of the defendant up till date and the defendant breached its contract of employment with the claimant. On issue three, counsel submitted that claimant is entitled to his claims as his employment has not been determined by the defendant. That the dismissal of claimant by the defendant is wrongful null and void which entitle him to reinstatement. He urged the court to so hold. The claimant also claims for the cost of litigation. He cited Order 24 Rule 1 of the National Industrial Court Rules, 2007 and urged the court to grant cost of legal fees in favour of the claimant. Counsel urged the court to grant declaratory judgment in his favour. He stated that declaratory judgment should be granted when court is of the opinion that the party seeking it when all facts are taken into account, is fully entitled to the exercise of the court discretion in his favour. He cited the case of CHIEF A. ABU & ORS V CHIEF A.Z. ODUGBO &ORS [2001] FWLR (PT. 69) 1260 @1314. Counsel stated that the defendant accepted in Exhibit ED that she reported the theft of her goods and bus to the police, she accepted that the claimant exposed the theft. Also under cross examination DW accepted that the claimant should be celebrated by the defendant for the good work he did by assisting it to recover its stolen goods. He urged the court to grant cost against the defendant. Counsel submitted that the defendant in response to the letter he wrote to its cooperative society, paid the claimant via the cheque, Exhibit TA 13. While the defendant in Exhibit ED states that the Exhibit TA13 was given to the claimant because he was no longer a staff of the defendant in paragraph 28, during cross- examination, the defendant’s witness said that cooperative society is voluntary, any staff can join and withdraw at will and still remain member of staff. Thus the issuing of cheque did not strip the claimant of his employee status with the defendant. counsel urged the court to uphold and grant his claims in his favour. The defendant on the 18th of October, 2014 filed a reply on points of law in response to the claimants final submissions. I will only summarize the part that is in fact a reply on points of law and live out the reply that are mere repetition or facts. It is submitted in reply to issue one of claimant’s submission that counsel’s submission however brilliant cannot take the place of evidence. He cited in support the case of OLATUNJI V. WAHEED [2012] 7 NWLR (PT. 1298) PG. 24 AT PG. 50, PARA. D Counsel submitted that the claimant’s Reply to Amended Statement of Defence of the Defendant on 10/04/2014, was not supported with any Statement on Oath of the Claimant. The effect of the said failure and neglect by the Claimant is that there is no evidence in Support of the said Reply to Amended Statement of Defence. It is trite that the current practice is that evidence-in-chief is given by adoption of written statement on Oath of witnesses. It is also trite that any pleading upon which no evidence is given is deemed abandoned and goes to no issue . That most of the Submission of learned Counsel to the Claimant as regards the facts contained in the said Reply to Amended Statement of Defendant of the Defendant are not substantiated for in evidence. Some of these evidence are: i. The Defendant management pointed and listed the names of her staff to be arrested by the Police including the name of the Claimant ii. The Claimant was arraigned on 10th May, 2011 and perfected his bail on 11th May, 2011 and he was asked to be reporting from 8.00am to 5pm every day. There is nowhere in the pleadings of the Defendant nor in the evidence of the Defendant witness where the Defendant admitted that the Police detained the Claimant and treated him like a Common Criminal. The unchallenged evidence of the Defendant's witness is that the Police arrested the Claimant and other staff of the Defendant in various departments that might have a hand in the theft of the Defendant's goods and vehicle. i.e, the Store Department, Security Department and Transport Department. The submission of the Claimant Counsel in paragraph G of page 13 of the Claimant's Final Written address is a mere counsel's submission which is not borne out by the evidence before the Court. On issues 2 and 4 of the claimant’s final submission, defence submitted that claimant's counsel’s submission is not a substitute for evidence. There is nowhere in the Statement on Oath of the Claimant where it was stated that the claimant was asked to be reporting from 8.00am to 5.00pm every day. There is also no place where it was stated in the Statement on Oath of the Claimant that the security men turned him back several times before the 13th of May, 2011 The counsel contended that the submission of the Claimant's Counsel in respect of Section 36 of Exhibit TA15 is misconceived. That the said section is mandatory regardless of the use of the word "may" in its provision. The importance of the said section is confirmed by paragraph 29 of the Statement on Oath of the Claimant where the Claimant categorically stated that he wrote the letter of his intention to resume work and submitted same on 13th May, 2011 in compliance with section 36 of Exhibit TA15. However, contrary to the submission of the Claimant's Counsel in paragraph F of page 17 it is not correct that the only condition that an employee will not be re-employed is only where he is found guilty of a criminal offence after trial. That the word "or" used in the expression "if the employee is detained by the police or if a criminal charge is preferred against him .. " clearly shows that the expression "if allowed to return to work," used in section 36 of Exhibit TA15 is applicable to both cases of an employee who is detained by the Police or an employee against whom a criminal charge is preferred and the discretion whether to allow an employee to return to work or not as shown in the expression "if allowed to return to work", is applicable to both cases of an employee who is detained by the Police or an employee charge to court. Counsel submitted that the interpretation given to dereliction of duty by the Claimant counsel is grossly misconceived. A person who has a duty to report at work every working day and who deliberately refused/abandoned to do so is guilty of no other misconduct than dereliction of duty. Especially in this case where section 35 of Exhibit TA15 Categorically states that ••••••••••••• any employee who absents himself from work for 3 days without permission will be regarded as having abandoned his employment and will be dismissed". That "dereliction" in the Black's Law Dictionary, Ninth Edition P. 508 Dereliction is defined as; "The forsaking of a legal or moral obligation with no intent to resume it; abandonment." Counsel also stated that the submission of claimant’s counsel that allegations of crime must first be proved before the dismissal of claimant can stand is the Old Law. That the law as of today is that an employer can dismiss an employee for misconduct bordering on criminal allegations without first resorting to court. He cited the case of the case of EZE V. SPRING BANK PLC. [2012] ALL FWLR (PT. 609) PG. 1076 AT 1093 PARA D-F. Counsel stated that Claimant’s counsel submitted in the final written address that the Claimant's termination is invalid, null and void and that the Claimant is still a staff of the Defendant and he should be reinstated and entitled to his salary as opposed to payment in lieu of salary if the employment is wrongful as claimant did not take cognizance of the distinction between ordinary master and servant relationship and a contract of employment with statutory flavour. Counsel stated that the claimant’s claims are unsubstantiated and thus should not be granted by the Court. After a careful consideration of the processes filed by the parties, the evidence on record, the demeanor of both witnesses, the argument of counsel and the authorities relied upon by the parties in support of their respective cases. The Court frames these issues as being germane for the just determination of this suit. 1. Whether or not the claimant's employment is determined by the defendant. 2. Whether or not the claimant has proved his case to be entitled to the reliefs sought. Both parties are ad idem that the claimant was employed by the defendant on 4th September, 2006 as a store supervisor vide a letter of employment dated 9th of August, 2009. This fact is not also in contention that claimant was at various times promoted as a result of his hard work to the position of Assistant Manager. That on the 5th day of March 2011, some of the defendant's staff conspired and indeed stole some of the defendant's products and its vehicle with registration no XT690 EKY. Both parties are in agreement that it was the claimant who discovered the theft of the said goods and vehicle and reported same to the defendant. That upon discovery of the theft the deputy managing director instructed the Chief Security Officer to quickly demobilize the stolen vehicle and quickly lodged a complaint of the theft to Aswani police station Isolo, Lagos. In course of the police investigation, some of the defendant’s staff were arrested they included; store personnel, audit staff, drivers and security men including the claimant and promptly recovered the stolen goods and vehicle. It is claimant’s contention that on 13th of May, 2011 he returned back to the defendant’s premises to resume his duties but was not allowed into defendant’s premises. The Defendant admitted that claimant was in its office to resume work, this was also stated in its final submission that it instructed its staff not to grant claimant access into its premises on the reason that he abandoned his duty contrary to Sections 35 and 36 of its handbook which provides that “…. And employee who absent himself from work for 3 days without permission will be regarded as having abandoned his employment and will be dismissed.” The law is certain that facts admitted need no further proof. Under cross examination claimant stated that he was arrested on the 5/03/11 and released on the same day but re-arrested on the 7/03/11 and detained till 11/03/11. The claimant in his reply to statement of defence of the defendant averred that he was granted bail and asked to be reporting to the police station every day from 8am to 5pm until he was arraigned on 10th of May,2011 and got his bail perfected at the Magistrate Court on the 11th of May, 2011 and returned to work on the 13th of May 2011. However, Exhibit TA11 and TA12 a letter written by the claimant to the defendant dated 6th December, 2012 further revealed that the claimant was and did infact report at the defendant place of business with a letter of intention to continue with the defendant, but was denied access. This is evident in paragraphs 15 and 16 of DW sworn deposition. It is the claim of the claimant that he is still a staff of the defendant and entitled to be reinstated by the defendant. It is the defendant’s contention is that it dismissed the claimant on the 9th of August, 2012 and the said letter of dismissal was given to the claimant at the Magistrate Court but he failed to acknowledge same. The claimant on the other hand stated that it never received the dismissal letter and the letter given to over 15months after he was denied access at the premises of the defendant. It is settled law that in a master servant relation relationship, he who hires has the corresponding right to fire too but must observe and adhere to the contract of employment under which the employee was hired before such an employee can be fired. SEE AKINFE V UBA PLC [2007] 10 NWLR (PT 1041) 185 CA. Both parties are in agreement that the terms of the claimant's employment are as contained in his letter of offer of employment and staff handbook, i.e. exhibits TA1 and TA15 respectively. It is evident in exhibit TA15 that either party can determine the employment relationship with a requisite notice or salary in lieu of notice, depending on the grade of the staff; if the employee is a junior confirmed staff period of notice shall be one month or a month salary in lieu of notice, two months notice or two months basic salary in lieu of notice for a senior staff and three months notice or three months basic pay in lieu of notice for managers. See section 11, clause 10, of exhibit TA15. Clause 10(a), provides that ''an employee may be summarily dismissed for serious misconduct in which case no notice is given and all privileges are forfeited''. Now, by Section 111 under the heading ''RULES AND REGULATIONS'' with specific reference to clauses 35 and 36 Absence from work and absence from work because of Court or Police procedure'' It is evident in both clauses that an employee who absents himself from work for 3 days without permission will be regarded as having abandoned his employment and will be dismissed. whilst clause 36 states- '' If an employee is required to attend a court, or is invited by the police to make a statement in connection with an incident, such an employee will be granted leave of absence with pay. If an employee is detained by the police, or if a criminal charge is preferred against him, he shall be immediately suspended without pay. if the employee is released on bail, he may apply to the company for permission to return to work.... an employee found guilty of a criminal charge shall not be re employed'' These provisions are unambiguous and the court need no external aid in understanding and interpreting the clauses. The defendant acted specifically on the second paragraph of clause 35. Meanwhile a plain reading of clause 36, shows that the crux of the claimant's case rests on clause 36 and not clause 35. It is so in view of the evidence on record which is to the effect that the claimant reported the theft of the stolen defendant's vehicle and the goods therein to the defendant, after which the defendant reported the matter to the police. This fact is not in contention. The defendant equally admitted that it is within its permissible knowledge that claimant was invited to offer statement, which he did but was detained along with other staff of the defendant. What the claimant did is in consonance with the first paragraph of clause 36 for which he was to have been granted leave of absence by the defendant. The defendant denied preferring any allegation of theft against the claimant. The defendant could not so do because according to it, the claimant reported the incident by calling its attention to the incident, after which the defendant swung into action leading to the recovery of the vehicle and the goods. See paragraph 5 (e) and (m) of exhibit TA7, where the DW corroborated this fact and same in his testimony before this Court.( exhibit EB). This is a case of an accuser being roped in and made the accused. This is most unfortunate. The reasonable action of the defendant in this instance would have been to give such a diligent and honest staff an award and accolade, rather the defendant towed the wrong path of throwing away the baby with the bath water. There is nothing on record to show that the claimant was suspended by the defendant for being charged for a criminal allegations by the police. He was later discharged by the Magistrate Court. It is admitted by the defendant that the claimant reported to its office after he was released on bail but, it instructed its staff never to allow the claimant access to its premises. This is in fragrant disregard to the provisions of the Handbook exhibit TA15. Clause 42 and 43 of exhibit TA15, make provision for suspension and dismissal of an employee. It states that an employee who is suspended of serious misconduct, he may be suspended from work until investigations have been concluded on the case. ''... Whenever an employee is suspended, he must be informed in writing by the Human Resources/Admin. Manager. The letter should contain instruction regarding when he should report back to work...'' The above provision of the handbook is as clear as crystal that an employee accused of misconduct either by his involvement in criminal matter, shall first and foremost be suspended and a letter of suspension shall be written by the Human Resources Manager, stating when he should report back to enable the employer to investigate same. It is obvious on record that the defendant neither wrote the claimant suspending him nor invited him to any investigating panel set up to investigate his complicity in the alleged theft of vehicle and goods, rather the defendant refused him access to its premises when he reported. That in effect is in contravention of the provisions of the contract of service. The defendant has actually displayed its pre determinate counsel to do away with the services of the claimant by its action as evinced on record. The defendant however, goofed by its failure or refusal to follow the letters and content of exhibit TA15, i.e the handbook. The defendant realized this in August when it issued a letter of dismissal vide exhibit EB2 dated 9th August, 2012. I find considering the overall circumstances of the facts before me that the claimant's dismissal is wrongful, oppressive and against the rule fair hearing and equity. Dismissal of an employee always comes upbrobium, its affects the dignity of an employee in the eye of the public. Hence in the world of works before an employee could be dismissed the law requires that such an employee must be given fair hearing by allowing him to be heard. See A.G. KWARA STATE V ABOLAJI [2009] 7 NWLR (PT.1139) 199 CA. Where the court held that when a disciplinary action is to be taken pursuant to a law, rule or as in this case terms of contract, there must be full compliance with that rule , law or terms of contract, for it to be justified. failure to do so would have the effect of compromising the right of the employee to a fair hearing and would be unlawful. I find and hold that the claimant dismissal is wrongful for having failed to follow the procedure espoused in exhibit TA15. The case of D.A. NIG. AIEP LTD V OLUWADARE [2007] 7 NWLR (PT. 1033) 336, is apt on this issue.. Issue one is therefore resolved in favour of the claimant. This will take me to the next issue which is whether or not the claimant is entitled to reliefs sought, It is the claimant's claim that he is still in the employment of the of the defendant and entitled to his salary from 1st March 2011 to date. It is on record that the claimant reported to work after he was released on bail on the 13th May, 2011 but the defendant refused him access to its premises. He wrote a letter in compliance with exhibit TA15 dated 13th May, 2011, but the defendant refused to collect it or acknowledged same. Clause 36 as stated supra was not complied with by the defendant, I say so because, it failed to issue a letter of suspension under the hand of the Human Resources Manager to the claimant. The last paragraph of clause 36 exhibit TA15 , states that if the employee is released on bail which is what transpired in the claimant's case, he may apply to the company for permission to return to work, the employee would be paid for the work done up to the date of the case being heard. An employee guilty of a criminal charge shall not be re employed. That is not the case here, the claimant when released on bail reported back to work with a letter exhibit TA5,stating his intention to return to work as he was not also found guilty of any criminal charge. The defendant in its bid to plug out both the briers, the chaff with the wheat, refused him access on the 13th May, went to comatose only to come round in August 2012 more than a year after with a dismissal letter. There is no justification for the claimant's dismissal. hence it in the eye of the law that the claimant is still in the employment of the defendant till date. Consequent upon which he is entitle to his wages. The law is that where there is no justification for putting an employee on either suspension or dismissal, the employee ought to be paid his salary. I find that claimant is entitle to his salary. Issue two is resolved in his favour. It is equally the claim of the claimant that he ought to be reinstated having been discharged from the Magistrate Court. The court in EFFIONG V EBONG [2006] 18 NWLR (1010) 109 CA defines Reinstatement as "putting the specified person back in law and in fact, in the same position as he occupied in the undertaking before the employer terminated his appointment." it is the law however, in a master servant relationship, a willing servant cannot be foisted on an unwilling master. UNION BANK OF NIGERIA PLC V EMMANUEL ADEREWAJU SOARES [2012] 29 NLLR (PT 84) 329. It is premised on this that the court would not order for the reinstatement of the claimant in this case. For it is obvious from all indications and the attitude of the defendant towards the claimant that he has overstayed his welcome in the defendant's company. Consequently, the claimant's claim for reinstatement fails and thus dismissed. Claimant's appointment is hereby determined by the court. The claimant is claiming for the cost of action in the sum of N1.5M and damages in the sum of N5M and N7M respectively for pains suffered as a result of non payment of his salary for a long time as well as general damages. There is no doubt that the claimant expended some money in securing the services of a lawyer and filing of the processes before this Court, In prove of this he tendered in evidence documents admitted as exhibits TA8 and TA14 evincing counsel's charges for the matters at the Magistrate Court and this Court present. I have carefully considered the two exhibits and it is in the clam view of the court that the claimant is entitled to be awarded cost of these actions, however, the court feels the solicitors charge is on the high side, the court thus award the sum of N250,000 as cost of both actions in the Magistrate Court and this court. Now, on the issue of damages for suffering for non payment of salary and general damages. General damages as the law is settled are awarded at the discretion of the court. It has been held earlier in this judgment that the claimant was wrongfully dismissed, this implies that he is still in the services of the defendant from the 13th May, 2011 when he returned back to work until date, that is my decision supra, the claimant is therefore entitled to his salary from May, 2011 till date. exhibit TA16 is his payslip before the court, his gross salary as at February, 2009 was N92,583.34 per month. less deductions which are expected to be remitted appropriately. ( Pensions and taxes) his net salary was N42,461.64. Now using his net salary of N42, 461.64 multiplied by 46 months will give us a total of N1,953.235.44. The claimant is equally entitle to a three months basic salary in lieu of notice which is N39,666.67 basic salary multiplied by three months will give a total of N119,000.01. Claimant claims that his handing over by the defendant to the police for prosecution was illegal, wrongful, unjust disregard for truthfulness and inhuman treatment. Defendant on its own part posited that such claim is not within the jurisdiction of the court as contained in Section 254 C (1) (a) to (m) of the Constitution of the Federal Republic of Nigeria (Third Alternation) Act, 2010. The claimant’s claims one is not within the ambit of jurisdiction of this court as it is clearly a claim for breach of fundamental right and not within the competence of this court to decide. I so hold. In summary I declare and make these orders- 1. That the claimant's summary dismissal on 9th August 2012 by the defendant was an afterthought, wrongful, oppressive and against the rule of natural justice equity and good conscience. 2. That the claimant's employment is hereby determined by the court. 3. That the claimant shall be paid his salary and other benefits and 3 months salary in lieu of notice as an Assistant Manager, which is the sum of N1,953,235.44 and N119,000.01 respectively as 46 months salary and 3 months salary in lieu of notice. 4. That all moneys remitted from his salary from March, 2011 as pension and taxes should be paid into the appropriate authorities. claimant shall confirm this from his PFA Managers. 5. That claimant shall be paid the sum of N250,000 as cost of this action. 6 . I award the cost of N150,000 as damages. Judgment is entered accordingly. HON. JUSTICE OYEWUMI OYEBIOLA O. JUDGE