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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: March 2, 2015 SUIT NO. NICN/CA/100/2012 BETWEEN MR. JOHN ETIM ARCHIBONG - CLAIMANT AND UNION BANK OF NIGERIA - DEFENDANT REPRESENTATION JUDGMENT The claimant’s claim is for, (i) A declaration that the summary dismissal of the claimant by the defendant as contained in the defendant's letter of 23rd July 2012 is unlawful, null and void. (ii) An order setting aside the purported dismissal of the claimant from the services of the defendant as conveyed by the defendant’s letter of 23rd July 2012. (iii) An order compelling the defendant to pay forthwith the salaries, allowances, bonuses and entitlements of the claimant from 23rd July 2012 up till the date of judgment in this suit. (iv) An order of perpetual injunction restraining the defendant, either by itself, directors, managers, officers, agents, privies or servants or through any person(s) whosoever from giving effect to the letter of dismissal dated 23rd July 2012 or from treating or further treating the claimant as a dismissed staff of the defendant or disturbing him in any way whatsoever from carrying out his duties as an officer or staff or employee of the defendant. (v) An order re-instating the claimant into the employment of the defendant at the substantive post he occupied before the commencement of this suit. OR (vi) IN THE ALTERNATIVE TO (iii), (iv) and (v), an order compelling the defendant to pay the claimant damages in the sum of N30,000,000.00 (Thirty Million Naira) for unlawful dismissal. STATEMENT OF FACTS 1. The claimant resides at 61, Barracks Road, Uyo, Akwa Ibom State and was at all material times before the commencement of this suit an employee of the defendant. A copy of the claimant’s identification card is pleaded and shall be relied on at the trial of this suit. The defendant is given notice to produce the original in Court. 2. The defendant is a bank with its registered office at Stallion Plaza, 36 Marina, Lagos carrying on the business of banking and other financial services. 3. The claimant was employed by the defendant on the 22nd day of December, 1993 as a clerk by virtue of a letter of employment and later rose to the position of Officer III by dint of hard work. 4. The appointment of the claimant was permanent and pensionable and he was entitled to other benefits commensurate with the grade level of Officer III which he attained during his 18 years in the employment of the defendant. 5. The claimant states that his monthly salary before he was summarily dismissed by the defendant was N86,948.66 (Eighty Six Thousand, Nine Hundred and Forty¬ Eight Naira, Sixty Six Kobo). A copy of the claimant’s salary account bank statement is hereby pleaded and will be relied on at the trial of this suit. 6. Sometime in 2008, the claimant was transferred from the defendant’s Ikot Edibon Branch in Akwa Ibom State to the defendant’s Clearing Centre at its Calabar Road Branch, in Calabar, Cross River State. 7. The claimant avers that his specific scope of duty was to carry out “inward clearing” (i.e clearing of the defendant’s cheques paid into other Banks and received by the defendant through Clearing Centre for settlement), at the defendant’s Calabar Clearing Centre. 8. Before cheques are sent to the Central Bank of Nigeria for clearing, the defendant Bank normally embarks on reconciliation of the cheques issued by the defendant’s customers and cashed in other banks and the cheques issued by customers of other banks and paid by the defendant. 9. The process of the reconciliation of the cheques issued by customers of other banks and paid by the defendant is known and referred to as outward clearing, whereas the reconciliation of the cheques issued by the customers of the defendant bank and paid by other banks is referred to as inward clearing. The claimant was in charge of inward clearing and Mrs. S. A. Essiet, another staff of the defendant, was in charge of outward clearing overseen by the Centre Manager Mr. D.S. Ekpoh. 10. The Defendant’s Calabar Clearing Centre Manager is always aware of the inward and outward clearing and reconciliation at all time, because the result of the reconciliation exercise is taken to him before the same is forwarded to Central Bank of Nigeria. 11. Claimant avers that before any cheque goes to Central Bank of Nigeria for clearing through defendant’s Central Bank of Nigeria representative, the Centre Manager must be aware of the aforesaid fact. 12. Sometime in December 2011, one Eyo Umoh Archibong, a staff in marketing section of the defendant’s Calabar Road branch, discovered certain discrepancies in the value of some cheques forwarded by the defendant’s Clearing Centre to Central Bank of Nigeria and informed the Centre Manager Mr. D. S. Ekpoh. 13. It was discovered that the proceeds that the Central Bank of Nigeria returned to the defendant’s Clearing Centre through the Central Bank of Nigeria Presentation Form was less than the value of the cheques that the defendant sent to the Central Bank of Nigeria on collection. 14. Pursuant to the discovery of the aforesaid discrepancies, the claimant was issued a query dated 19th December 2011 headed “Non-Reconciliation of Endpoint Account, resulting to fraudulent practice by Shugaba Aliu Haruna-A/C No.011523430 amounting to N10,360,000.00”, by the defendant’s Centre Manager, Mr. Ekpoh, alleging that the loss suffered by the defendant as a result of the fraud discovered, could have been avoided if the claimant had diligently carried out his duty of reconciliation. A copy of the Query letter is hereby pleaded and shall be relied on at the trial of this Suit. The original of this document is with the defendant who is put on notice to produce same in Court. 15. The claimant avers that in response to the query he explained that it was not within the scope of his duty to scrutinize and reconcile outward clearing items and that it was the responsibility of Mr. S. A Essiet and Mr. Ekpoh. A copy of the claimant’s response to the query is hereby pleaded and shall be relied on at the trial. The defendant is given notice to produce the original at the trial. 16. The claimant states that he was neither responsible for any discrepancies nor for failure of other staff to detect any discrepancies in the outward clearing items listed in the query letter of 19th December 2011 as it was not part of his job with the defendant. The claimant further avers that his job was inward clearing. 17. The claimant states that the defendant’s Centre Manager also issued a query to Mr. S. A. Essiet for manipulation of cheques at the Central Bank of Nigeria using the Defendant’s flash drive. 18. At the instance of the defendant, the claimant was arrested on the 19th day of December 2011 along with Mr. S. A. Essiet, the defendant’s Central Bank of Nigeria Clearing Representative and detained for 8 days by the police at the State Police Command, Diamond Hill, Calabar. 19. During the detention period of the claimant, he was questioned by the police on the allegation made against him by the defendant and was asked to make a statement in respect of the allegation. The police told him that the defendant’s Centre Manager (Mr. Ekpoh) alleged that he was the one who stole the money and that as a result his bail conditions would be stringent. 20. Upon the release of the claimant from police detention, he was redeployed by the defendant to the defendant’s Marketing and Debt Recovery Unit Calabar Road Branch, Calabar. 21. Claimant was subsequently informed by the Investigating Police Officer that one Abdul Garba Mohammed also known as Garuba Abdullahi, a staff of Zenith Bank Plc, who was the Bank’s Central Bank of Nigeria Clearing Representative at the material time, made a statement to the police admitting responsibility for the fraud committed against the defendant. At the trial of this case, claimant shall apply for a subpoena on the Investigating Police Officer or his representative from State Police Command, Diamond Hill, Calabar to produce the said statement. 22. Sometime in January 2012, the claimant was questioned by the defendant’s Inspectors from the Lagos office about the fraudulent practice by one Shugaba Aliu Haruna which resulted in a loss of N10,360,000.00 to the defendant. Claimant was asked to make a statement in respect of the aforesaid fraudulent practice and the claimant made a statement and submitted same to the defendant’s inspectors. 23. By a letter dated 1st March, 2012, written by one Mike Iyela on behalf of the defendant, the claimant was suspended indefinitely from duty by the defendant. A copy the letter of suspension is hereby pleaded and shall be relied on at the trial of this suit. 24. According to the letter of suspension referred to in paragraph 23 above, the claimant was suspended for “alleged involvement in suppression of outward clearing cheques and manipulation of the Bank’s flash drive at Calabar Clearing Centre” which were different allegations from the one contained in the query earlier given to the claimant. 25. The claimant avers that, he was never given an opportunity to defend himself against the fresh allegations of involvement in suppression of outward clearing cheques and manipulation of the defendant’s flash drive as stated in the aforesaid suspension letter. 26. By a letter dated 23rd July 2012 written by one Mike Iyela on behalf of the defendant, the claimant was dismissed from the service of the defendant for gross misconduct. A copy the letter of dismissal is hereby pleaded and shall be relied on at the trial of this suit. 27. The claimant avers that following the visit by the defendant’s Inspectors he was not given any opportunity to appear and defend himself before a Staff Disciplinary Committee over the allegations made against him before he was dismissed contrary to the provisions of the defendant’s Disciplinary procedure contained in the defendant’s Handbook. A copy of the defendant’s handbook is hereby pleaded and shall be relied on at the trial. The defendant is put on notice to produce the original at the trial. 28. The claimant avers that he was summarily dismissed by the defendant contrary to the provisions of the Collective Agreement between The Nigeria Employers’ Association of Banks, Insurance and Allied Institutions and the National Union of Banks, Insurance and Financial Institutions Employees (hereafter ‘Collective Agreement’) as the allegation of fraud made against him was not proven and he was not afforded the opportunity to defend himself against the fresh allegations made against him in the suspension letter before he was dismissed. A copy of Collective Agreement is hereby pleaded and will be relied on at the trial of this suit. 29. Whereof the claimant claims against the defendant as follows: (i) A declaration that the summary dismissal of the claimant by the defendant as contained in the defendant's letter of 23rd July 2012 is unlawful, null and void. (ii) An order setting aside the purported dismissal of the claimant from the services of the defendant as conveyed by the defendant’s letter of 23rd July 2012. (iii) An order compelling the defendant to pay forthwith the salaries, allowances, bonuses and entitlements of the claimant from 23rd July 2012 up till the date of judgment in this suit. (iv) An order of perpetual injunction restraining the defendant, either by itself, directors, managers, officers, agents, privies or servants or through any person(s) whosoever from giving effect to the letter of dismissal dated 23rd July 2012 or from treating or further treating the claimant as a dismissed staff of the defendant or disturbing him in any way whatsoever from carrying out his duties as an officer or staff or employee of the defendant. (v) An order re-instating the claimant into the employment of the defendant at the substantive post he occupied before the commencement of this suit. OR (vi) IN THE ALTERNATIVE TO (iii), (iv) and (v), an order compelling the defendant to pay the claimant damages in the sum of N30,000,000.00 (Thirty Million Naira) for unlawful dismissal. STATEMENT OF DEFENCE 1. The defendant admits paragraphs 1, 2, and 3 of the Statement of Facts. 2. The defendant denies paragraph 4 and states further that the defendant was dismissed and is not entitled to any other benefits of his office. 3. The defendant admits paragraphs 5 and 6 of the Statement of Facts. 4. The defendant denies paragraph 7 and further avers that as Head of Operations in the Clearing Centre, it was entirely the duty of the claimant to ensure that all clearing operations in terms of balances and reconciliations are in order. In the instant case, the claimant failed abysmally to discharge this duty which paved way for the fraud and loss. The claimant averments is simply a calculated attempt to evade and shift responsibility for his gross misconduct/culpable negligence in the discharge of his duty. 5. In answer to paragraph 8, the defendant avers that before cheques are sent to the Central Bank of Nigeria, they are reconciled. However these cheques that are sent to the CBN are usually not cashed as admitted by the claimant. It is only when they have attained the complete clearing period that value is given on them for the credit of those who presented them to their banks for onward presentation to CBN. It is further averred that the reconciliation as stated by the claimant is part of his duties as the Head of Operations of clearing in that centre. 6. The defendant denies paragraph 9 of the Statement of Facts. In further answer the defendant avers that the duties of the defendant in his capacity as the Head of Operations of the centre included the whole procedure and process associated with clearing at the centre. Indeed, his duty included ensuring that the Bank (defendant) gets appropriate value for all outward clearing (cheques of other Banks presented by the defendant’s customers) and paying appropriate value on the defendant’s cheques presented at other banks (Inward clearing). This in fact is the essence of reconciliation. The two exercises are taken at one swoop in Central Bank of Nigeria (CBN) (the Clearing House) and the claimant was in charge. 7. In answer to paragraph 10 and 11 the defendant asserts that the averment of the claimant therein is not the true position. Though the whole process could be forwarded to the Centre Manager before it is sent to the CBN for his counter signature, it was the primary duty of the claimant to ensure that the whole process is flawless. Thus he was not absolved at all as it was his primary responsibility to ensure that the whole process is properly reconciled and balanced. 8. The defendant denies paragraph 12 and 13 of the Statement of Facts. In further answer the defendant avers that it was Mr. D.S. Ekpo who discovered the discrepancy while on or about 14/12/2011 reconciling the proceeds of cheques received from CBN on 12/12/2011 as listed on the presentation form. There he discovered that proceeds of one Zenith Bank cheque was debited to the End Point Suspense Account on 09/12/2011, whereas the credit did not reflect on the Centre’s Presentation Form received from CBN Clearing House. 9. The defendant admits paragraph 14 of the statement of facts. 10. The defendant denies the averments of the claimant in paragraphs 15 and 16 of the statement of facts and in further answer avers and repeats all their averment in paragraphs 5 - 8 of this statement of defence in defence. 11. The defendant admits paragraph 17 of the statement of facts as that staff was also culpable, but in answer to paragraph 18, the defendant avers that it reported the matter to the Police who in the course of their investigation arrested the claimant and took him for interrogation at their absolute discretion. 12. The defendant only admits in answer to paragraph 19 that the claimant was interrogated by the police. All other averment of facts in the paragraph is denied and the claimant shall be put to strict proof. 13. The defendant admits in response to paragraph 20 redeploying the claimant. 14. The defendant denies paragraph 21 of the statement of facts and shall at the trial put the claimant to the strictest proof as the facts are not to their knowledge. 15. The defendant admits paragraphs 22, 23 and 24 of the statement of facts. The questioning by the Inspectors was to afford the claimant say all he knew about the issue and defend himself to enable a report be made to the Staff Disciplinary Committee. 16. The defendant denies paragraph 25. These were no fresh allegations. The claimant was given an opportunity to defend himself by the investigation/questioning by the Inspectors and his response to the query. He had opportunity to say all he knew about the matter as his duty was to ensure through proper reconciliation and balancing the whole process was flawless and protect the bank from possible fraud and loss. This gross misconduct occasioned loss to the bank. 17. The defendant admits paragraph 26 of the statement of facts. 18. The defendant denies paragraph 27 of the statement of facts. The defendant further asserts in answer to paragraph 27, that the claimant was afforded opportunity to defend himself and that his case was investigated by the Inspection Department during which the claimant was questioned and he also defended himself. The dismissal was the final disciplinary action by the bank. At the trial the claimant shall be put to strict proof of the allegation that his dismissal was not in accordance with his terms of employment. 19. The defendant denies paragraph 28 of the statement of facts. In further answer the defendant states that the claimant was given opportunity to defend himself which he availed himself of in the response he made in reply to the query issued him. His dismissal was effected after the investigation by Inspectors during which the claimant was questioned and he also made statement in his defence. The claimant was established to have been grossly negligent in the performance of his duty as Head of Operations of the Calabar Clearing Centre. The claimant had been given opportunity to defend himself against the allegation made against him. The defendant complied with due process and will at the trial put the claimant to strict prove of other allegations contained in paragraph. The defendant shall at the trial put the claimant to very strict proof of the allegations of breach of the collective agreement by the letter of dismissal issued to him. The claimant had fair hearing before his dismissal. 20. The defendant denies paragraph 29 of the statement of facts and avers that the claimant is not entitled to any of the reliefs contained and claimed therein in paragraph 29 (i), (ii), (iii), (iv) and (v) or at all. 21. The defendant also avers that the claimant is not entitled to any of the alternative reliefs as contained in paragraph 30 (vi) or at all the same having no bases whatsoever and shall at the trial urge this Court to dismiss this case as same is purely speculative and an abuse of the legal process with substantial cost. 22. The defendant shall raise and rely on all legal and equitable defences available to them at the trial. DEFENDANT’S FINAL ADDRESS ISSUES FOR DETERMINATION My Lord, for the determination of this suit the defendant formulates the following issues:- (i) Whether the dismissal of the claimant by the defendant was unlawful. (ii) Whether the claimant is entitled to an order of re-instatement and injunctions as claimed. (iii) Whether the claims for Salaries, allowances and bonuses or N30 million damages, for unlawful dismissal is sustainable. ARGUMENT OF ISSUES ISSUE NO. 1 WHETHER THE DISMISSAL OF THE CLAIMANT BY THE DEFENDANT WAS UNLAWFUL. My Lord, the claimant in paragraph 3 of his statement of facts asserted that he was employed on the 22nd day of December, 1993 as a clerk by virtue of a letter of employment and later a rose to the position of Officer (III). In paragraph 4 of the statement of fact claimant alleged that his appointment was permanent and pensionable and that he was entitled to other benefits commensurate with the grade level of Officer (III). The defendant in paragraph 3 of its statement of defence and paragraph 3 of its written statement on oath of Mr. Ugwu Chibuike Osheique denied the allegation that the claimant’s appointment was permanent and pensionable and the assertion that the claimant was entitled to other benefits and demanded strictest proof of same. In paragraph 28 of the Statement of Facts and paragraph 29 of his written statement on oaths, the claimant alleged that he was summarily dismissed contrary generally to the provisions of the Collective Agreement between the Nigeria Employers Association of Banks, Insurance and Allied Intuitions and National Union of Banks, Insurance and Financial Institutions Employees (hereinafter referred to as Collective Agreement). Claimant also complained in paragraph 27 of the statement of facts and 28 of the written statement on oath generally that the provision of the defendant’s handbook was not complied with. The defendant in paragraphs 19 and 20 of its statement of defence and paragraphs 24 of its written statement on oath of Mr. Ugwu Chibuike Osheique vehemently denied these allegations and unequivocally stated that “the claimant, was not dismissed contrary to the terms of his employment” and that he was dismissed for gross misconduct after being given ample opportunity to defend himself and he did but his reasons were not acceptable. My Lord, the Collective Agreement, is listed as No. 9 and admitted as Exhibit “9”. The Collective Agreement is between the Nigeria Employer’s Association of Banks, Insurance and Allied Institution and the National Union of Banks, Insurance and Financial, while Exhibit 8 is the defendant’s handbook. My lord, based on the state of pleadings, the defendant having denied paragraphs 27 and 28 of the statement of facts, by their paragraphs 19 and 20 of the statement of defence, the legal effect and implication is that the parties are at “issue”. In New Nigeria Bank Plc v. Egun (2001) FWLR (Pt. 64) 322 Held 10, the Court of Appeal held thus: “Where parties to an action have answered one another’s pleadings in such a manner that they have arrived at the same material point or fact, affirmed on one side and denied on the other, parties are said to be “at issue”; they have joined issues and the question thus raised is called the issue”. My lord, in effect, except there is an admission in the opposing party’s pleadings, the burden of proving that issue, if necessary to the success of a party’s case, is on that party. We submit that in this case that burden is squarely on the claimant to prove the facts pleaded in paragraphs 27 and 28 of his statement of facts. My Lord, the claimant in his evidence in paragraphs 7 and 8 of his written witness statement on oath stated that he works in the defendant’s Clearing Centre at her Calabar Road Branch, Calabar, Cross River State. In paragraph 13 and 14, claimant stated that it was one Eyo Umoh Archibong in December, 2011 that discovered discrepancies in the cheques forwarded by the defendant’s Clearing Centre, where claimant was the head, to the Central Bank of Nigeria. That it was further discovered that the proceeds that the Central Bank of Nigeria returned to the defendant’s Clearing Centre was less than the value of cheques the defendant’s Clearing Centre sent to the Central Bank of Nigeria. In paragraph 15 of his evidence, the claimant said that it was this discovery of discrepancies resulting in the loss of the sum of NI0,360,000.00 (Ten million, Three Hundred and Sixty Thousand Naira) by the defendant that made the defendant through its Centre Manager, Mr. Ekpoh to issue the claimant with query on the basis that the loss would have been avoided had claimant diligently discharged his duty of reconciliation. It is also in evidence that other staff at the defendant’s clearing Centre were queried. My Lord, in paragraph 23 of his evidence, the claimant testified that in January, 2012 after being queried he appeared before the defendant’s Inspectors from the Lagos Office to offer explanation on the loss of the sum of NI0,360,000.00 (Ten Million, Three Hundred and Sixty Thousand Naira) as a result of the claimant’s negligence and also made a written statement delivered to the Inspectors. It is in evidence that DW1 under cross examination on the 7/7/2014 stated that Inspectors are auditors who came to the bank at interval to see what is done and also visit branches where there are issues that need their attention, like the incident that gave rise to this suit. Evidently the visit of the defendant’s Inspectors to the defendant’s Calabar road branch and the claimant appearance before them to offer explanation on the loss of the sum of NI0,360,000.00 as a result of the negligence of the Clearing Centre, where claimant was head, in addition to the query and written representation, as admitted in paragraph 23, were all meant to give the claimant the opportunity to defend himself. We refer my lord to the evidence of the defendant through DWl, particularly paragraphs 7, 8, 9 and 10 which was not challenged nor contradicted under cross examination clearly prove that there was gross dereliction of duty and negligence on the part of the claimant which resulted in a colossal loss to the defendant and even if a fraud was perpetuated the loss could have been averted had the claimant who was the head had ensured proper reconciliation and balancing at the defendant’s Clearing Centre. The claimant’s contention in paragraph 22 of his written statement on oath attempting to absolve himself by asserting that the loss the defendant suffered was as a result of confessed criminal act of a third party and relying on Exhibit OCLl as proof is untenable as the defendants position is that but for the negligent discharge his duties, such criminal act could have been detected before it occasion such a colossal loss to the defendant. (See paragraphs 7, 8, 9 and 10 of the defendant'’ written statement on oath). In any case we submit that Exhibit OCLl in law is no evidence of the truth of the facts contained therein. (See Attah v. State [2010] AII FWLR (Pt. 540) 1224 held 6). My Lord, Exhibit “3” is the Claimant's answer to the query and it was after the claimant’s appearance and explanation before the defendant’s Inspectors from Lagos that the claimant was suspended as evidenced on Exhibit “6” and subsequently dismissed by Exhibit “7”. My Lord, the termination of an employee can only be unlawful if it is not in line with the procedure spelt out in the contract of service. We submit that the onus of showing that the dismissal of the claimant was unlawful is on the claimant through tendering of his contract of service or letter of appointment to show that his dismissal was contrary to the terms spelt out in his contract of service. The material facts that necessarily must be pleaded, must demonstrate in what manner the said terms and condition of service were breached by the employer. It follows therefore that the success or otherwise of such a party depends solely on the pleadings showing the terms and conditions of that employment allegedly breached since the Court is not permitted to go outside the agreed terms and conditions or search for such terms. (See Texaco Nigeria Plc v Kehimdie (2002) FWLR (Pt. 94) P. 143 at 146 - 147 held 3. It is not sufficient, indeed improper for the claimant to alleged generally the breach of collective agreement or Hand book. He is expected by the rules of pleadings to plead which specific provision of the Collective agreement or handbook that has been breached. In Yusuf v National Teachers Institute, (2002) FWLR (Pt. 129)1509, [Pp. 1522-1523, paras. C-C the Court of Appeal, per Muntaka- Coomassie JCA pronounced thus on this issue: “Surely the respondent as plaintiff could not have been relying upon all the Civil Service Rules of the Federation and the entire provisions of Decree No. 10 of 1985 in support of his claim. Specific terms of the contract of employment as contained in the specific rule or rules of the Civil Service Rules or provision of Decree No.10 of 1985 should have been pleaded so as to give the other party adequate notice of the nature of the respondent's claim in line with the rules of pleadings … The alleged wrongful dismissal of the respondent must have been in breach of specific term or terms of the contract of employment which must be pleaded to allow the respondent lead evidence on the alleged breach in order to establish his case”. The above view followed an earlier position pronounced by the Supreme Court in Morohinfola v College of Technology (1990)7 SCNJ 51/57 per Uwais JSC (as he then was) stated the law succinctly thus: “The appellant’s cause of action was based on the contract of employment. It was absolutely essential therefore for the appellant, as plaintiff, to plead in his statement of claim the fact that there was a contract of employment between him and the respondent, as defendant. And furthermore, to spell out on the statement of claim what the terms of contract were. If this was not done, the material facts necessary to formulate a complete cause of action has not been averred and the statement of claim is bad”. We submit that in order for the claimant to discharge the burden of proof that his dismissal is unlawful there was need for him to have pleaded and tender his letter of appointment/contract of service, showing the terms of the contract. The tendering of the letter or contract of service would have been done to prove the pleaded facts. We submit that the failure of the claimant to tender same is tantamount to his failure to produce facts necessary to discharge the burden of proof placed on the claimant and this is fatal to the claimant’s case. (See Onuh v Idu (2002) FWLR (Pt. 94) P. 66; Plateau Investment and Property Development Company Ltd. v Ebhota (2001) FWLR (Pt. 64) P. 374 at held 9. The claimant in a failed attempt to discharge the burden that he was wrongfully dismissed, allude generally (an approach condemned in Yusuf v National Teachers Institute supra) to the alleged “violation” of Exhibit 8 and 9. These are the Collective Agreement and Handbook. As pronounced in Morohinfola v College of Technology (supra) nowhere did the claimant plead in his statement of claim what the terms of contract were and which terms of that contract had been breached since it is not the duty of the court to search or investigate from the exhibits and determine which term is breached or not. Hence the Supreme Court from the above case determined that in the absence of such pleadings, the pleadings is bad as there is no material fact necessary to formulate a complete cause of action. This violation of the rules of pleadings with respect is fatal to the claimant’s case and we urge this court to so hold. Further still, the position of the law is unquestionable, that the terms of the contract of service is the foundation of any case where the issue of wrongful termination or dismissal of employment falls to be determined. See Texaco Nigeria Plc. v Kehinde [2002] All FWLR (Pt. 94) 143. The terms regulating the relationship between an employer and his employee is to be found in his service agreement or letter of employment. See Anaja v. U.B.A. Plc [2011] All WLR (Pt. 600) 1289 Held 2; International Drilling Co. (Nig) Ltd. v AjijaJa (1976) l All NLR 117. We submit respectfully, that collective agreements are not such contract of service, and on their own, do not give an individual employee, the right to bring an action in respect of any breach of its terms. They are not made between the employer and his employee and the law is that in contract, a non-party cannot enforce it, even if it was made for his benefit. See Anaja v U.B.A. Plc supra Held 3. For a Collective agreement to be binding, it must be shown clearly to have been incorporated or embodied in the conditions of a contract of service/letter of appointment whether expressly or by necessary implication otherwise it is not binding. So held the Supreme Court in Abalogu v S.P.D.C. Ltd. [2003] FWLR (Pt. 171) 1627 Held 5 [P. 1651, para. F-G]. My Lord, the Service contract of the claimant has not been tendered although the claimant admitted under cross examination that it was signed. The terms are unknown, nor proved, as such there is absolutely no evidence to support or suggest that the collective agreement was ever incorporated either expressly or by necessary implication by it. In Abalogu v S.P.D.C.Ltd supra, on similar facts, the claimant’s claim which sought to rely on the collective agreement which was not shown to have been so incorporated was dismissed. We submit further, that it is not the duty of the defendant to prove that the dismissal of the employee is in accordance with the terms of his contract of employment, but rather the primary duty of the claimant who asserts and who is seeking declaratory reliefs to prove his assertion before the onus of prove would shift to the defendant to justify the dismissal. In the absence of the terms of employment, the incidence of ordinary master and servant relationship applies, which endows the master with the power to terminate the relationship summarily. The suspension of the claimant and also the dismissal as shown in Exhibits 5 and 6 were done in exercise of the right of the defendant as employer to terminate and/or dismiss the employee in an ordinary master servant relationship for gross misconduct/negligence resulting in huge loss to the defendant. The reason for the dismissal of the claimant, as clearly stated in the letter of dismissal is as a result of gross misconduct. There is no reference whatsoever to any collective agreement or Handbook which the claimant also has not shown regulated his employment. There is evidence by the defendant that the gross misconduct related to the negligence in the performance of the claimant’s duties, resulting in the loss of millions of naira to the defendant which loss the claimant has admitted. My lord, we submit that employments in an establishment are personal to the employee, so are the terms of the employment. What may apply for one staff, necessarily do not apply to other staff, hence the obligation under the law for an employee or claimant to prove the terms of his employment. This court therefore in the absence of any iota of evidence, cannot speculate on the terms of the Service Contract subsisting between the parties, which the claimant has admitted he signed, which is the only document that can show whether there is any relationship between the collective agreement or Hand book (Exhibits 7 and 8) to the claimant’s contract or not. This court is in the circumstance left to speculate. We submit that an assertion remains an assertion unless it is proved by evidence. A Court must not speculate. We submit further that a party who prays the court for any relief must prove it. A party who asserts the truth or existence of a fact must proof it. A mere speculative observation cannot be a substitute to prove the fact asserted. (See Odumade v Ogunnaike (2001) All FWLR (Pt. 566) P. 529 at 534 - 535 held 10; Adebest Telecom (Nig) Ltd. v UBA (2011) All FWLR (Pt. (557) P. 783 at 788. The defendant fully afforded the claimant the opportunity to answer to the gross misconduct which resulted in huge loss to the defendant. He was queried, given opportunity to say all what he knew about the performance of his duty which led to the negligent loss to the defendant. He also made a written representation to the auditors to state his case which were all received and considered before his dismissal. We refer to the evidence of the defendant through DWl, particularly paragraphs 7, 8, 9, 10, 11, 21 and 24 which were not contradicted nor challenged during cross examination. We urge you to believe it and hold that the facts are established. The negligence in the performance of his duties made it possible for the fraud to be carried out resulting in loss to the defendant. Therefore the allegation by the claimant that, he was summarily dismissed and was not given opportunity to defend himself is baseless and unfounded. We submit respectfully that there is nowhere and it has not been shown by the claimant which contract provision compelled the defendant to afford him opportunity to appear before a disciplinary committee to defend himself. We submit that fair hearing is satisfied once the party knows of the complaints against him, and is afforded opportunity to answer and/or respond to same before he is discipline on the matter. We submit that a servant can be summarily dismissed by his employer if his conduct is of great and weighty character that it undermines the relationship of confidence which should exist between master and servant. See National Electric Power Authority v Enyong [2003] FWLR (Pt. 175) 452 Held 8. We submit further that the master has full powers to terminate the employment of his servant at any time, for any reason or indeed, for no reason at all. We submit that the dismissal of the claimant by the defendant for act of negligence resulting in the loss of the sum of N10,360,000.00 after being queried, appearing before the defendant’s Inspectors and written representation made and suspension is lawful. (See Anaja v USA Plc [2011] All FWLR (Pt. 600) P. 1289 @ 1292 held 2 and 4). In fact, in cases bordering on gross misconduct as in this case, the master is entitled to summarily dismiss the servant. Acting in a way that affects the deep interest of the employer has been recognized as such situations entitling the master to summarily dismiss the employee. The defendant’s business is to custody the funds of her customers with obligation to pay back when ever demanded. The loss of the funds therefore as a result of negligent act of an employee grossly affects the interest of the master and may result in the master going bankrupt. This was the view and pronouncement of the court in Michelin (Nig) Ltd. v Alaribe [2010] All FWLR (Pt. 543) 1998, where the Court of Appeal per EKO JCA, held thus: “For gross misconduct or in the face of acts prejudicial to his interest, the master is given full hand to abridge the formalities or formal procedure of repudiating his relationship with his servant … the law is now settled that working against the deep interest of the employer clearly amounts to gross misconduct entitling the employer to dismiss his employee irrespective of the condition of his service …”. (See also Yusuf v National Teachers Institute [2002] FWLR (Pt. 129) 1509 held 2; Ajayi v Texaco Nigeria [1987] 3 NWLR (Pt.62) 577/579; Shaiub v Nab (1998) 4 SCNJ 109. Accordingly, we respectfully urge you to resolve this issue against the claimant. ISSUE NO. 2 WHETHER THE CLAIMANT IS ENTITLED TO THE ORDERS OF RE-INSTATEMENT AND INJUNCTIONS AS CLAIMED. My Lord, the claimant whose negligent act resulted in the loss of the sum of N10,360,000.00 (Ten million, three hundred and sixty thousand naira) amongst his relief before this court is seeking an order of re-instatement. In his evidence, the claimant stated that the main reason for his being queried was that he negligently carried out his duty of reconciliation. The defendant in their statement of defence and particularly paragraph 24 of its witness written statement on oath stated that the claimant was found to be grossly negligent in the performance of his duty as the Head of Operations of Calabar Clearing Centre resulting in loss of N10,630,000.00 to the defendant. This fact was never controverted nor contradicted during cross examination. We submit that uncontroverted facts are deemed admitted. (See Joseph v First Inland Bank (Nig) Plc (2010) All FWLR (Pt. 504) 1487 Held 5. We submit that in purely master and servant relationship, as in the instant case, which is devoid of statutory flavor and in which the said relationship is purely contractual, termination or dismissal of an employee by the employer cannot be said to be wrongful unless it is proved to be in breach of the term and condition of the contract. (See Texaco Nigeria Plc v Kehinde Supra). My Lord, it is an established position of the law, as laid down by a long line of authorities, that a willing servant cannot be forced on an unwilling master. We submit further that it is only when an employment is protected by statute that the employee who is unlawfully dismissed may be reinstated and not in any other master servant relationship. It is trite that a court cannot compel an unwilling employer to re-instate a servant who is dismissed. (See Olanrewaju v Afribank Plc [200] FWLR (Pt. 72) 2008 at 2011 held 8. We submit further that the Court will not order specific performance or make an order of declaration of an ordinary contract of employment not regulated by statute. (See Kabelmetal Nig. Ltd. v Ativie (2001) FWLR (Pt. 66) P. 662 at 664 & 667. The claimant has not demonstrated that his employment comes within the purview of known and settled master servant relationship in which the courts can order re-instatement. From the evidence, this is purely an ordinary master servant relationship. The remedy/order of re-instatement is not applicable to such employment. We submit therefore that the claimant is not entitled to this relief and it should be refused and dismissed. It follows also that the claims by the claimant as contained in his reliefs, items 29 (ii), and (iv) for this court to set aside the dismissal and also grant perpetual injunction are clearly untenable and cannot be granted as this would still amount to imposing a servant on an unwilling master. We urge your lordship in the circumstances to resolve this issue against the claimant. ISSUE NO. 3 WHETHER THE CLAIMS FOR SALARIES, ALLOWANCES AND BONUSES OR N30 MILLION DAMAGES, FOR UNLAWFUL DISMISSAL IS SUSTAINABLE. My Lord, apart from the claims for salaries, allowances and bonuses and entitlement from 23rd July 2012 up till judgment, in the alternative, the claimant is seeking an order of this Honourable Court compelling the defendant to pay claimant damages in the sum of N30,000,000.00 (Thirty Million Naira) for wrongful dismissal. The claimant has not identified the nature of damages he claims. We submit however, in an action for wrongful dismissal, general damages or unknown and such claims are baseless or unfounded and are award not recognized under contracts of service or employment. See International Drilling Co. Nigeria Ltd. v Moses Eyeimofo Ajijala 117 All NLR (Pt.1) 117@131-132. The defendant in his evidence has unequivocally contended that the claimant is not entitle to the alternative reliefs as same is baseless and unfounded. Firstly, we submit that in a master servant relationship as in the instant case, the servant has the onus to show that his contract was terminated in a manner not provided by the contract in order to be entitling to damages. To be entitle to damages, the claimant has the onus to proof that he was wrongfully dismissed by the defendant, but in the instant case the claimant by not tendering his contract of employment has failed to prove the terms and has not shown in what manner he was wrongfully dismissed by the defendant. (See Kabelmetal Nig. Ltd. v Ativie [2001] FWLR (Pt. 662 at 665-665). My Lord, assuming but not conceding that the claimant was wrongfully dismissed, we submit that the measure of damages in an action for wrongful termination/dismissal is founded on the law of contract. (See Texaco Nigeria Plc v Kehinde (2001) FWLR (Pt. 94) P. 133 at 149 held 14. In this case, the claimant under cross examination on 10/10/2013 admitted that he signed a contract of service with the defendant which provides that either the claimant or defendant can give one month notice or one month salary in lieu of notice before termination. We submit that where there is a provision for terminating the contract of employment and the said provision is breached, what the employee should be entitled to would be the salary for the period of the notice which the employer would have given to terminate the employment of the employee. (See National Electric Power Authority v Enyong [2003] FWLR (Pt. 175) P. 452 at 459 held 10 and 11, African Newspapers Ltd. v Akano [2012] All FWLR (Pt. 605) 345, held 4; Union Bank of Nig Plc v Nwachukwu [2000] FWLR (Pt. 6) 984, held 2. We submit that under the law, and as pronounced upon by the courts in a long line of authorities, is that the measure of damages recoverable for wrongful dismissal or termination is the amount the claimant would have earned during the period necessary for the lawful termination of the contract. The claimant admitted under cross examination on 10/10/2013, that under their relationship, either party could lawfully terminate the relationship by giving one month’s notice. Applying that to the instant case is one month salary. (See Chemiron International Ltd. v Egbujuonuma [2007] All FWLR P. 444 at 448 held 7. The reasoning being that the measure of damages is always the salaries for the length of time during which the notice of termination could have been given in accordance with the contract of employment. We submit that though the claimant did not tender his letter of employment but has admitted under cross examination that the length of notice for the termination of his contact of employment is one month notice or one month salary in lieu of notice. (See Union Bank of Nigeria v Nwachukwu [2000] FWLR (Pt. 6) 986 at 988, held 2. Thus, we submit that at best assuming but not conceding the dismissal of the claimant is wrongful the damages in the circumstances of this case, is only limited to one month's salary of the claimant which accords with the one month’s notice for the lawful termination of the relationship as admitted by the claimant. We submit therefore that there is no legal basis whatsoever for the N30 Million damages claimed. The claimant is not entitled to salaries, allowances and bonuses for service he never rendered outside the salary for the period of one month notice during which the contract could have been lawfully determined as admitted by him. See African Newspapers Ltd v Akano [2012] All FWLR (Pt. 605) 345. Also in Spring Bank Plc v Babatunde [2012] All FWLR (Pt. 609) 1191 holding 4 the Court of Appeal held that “A servant who has been unlawfullv dismissed cannot claim his wages for services not rendered”. Accordingly we urge on the court to resolve this issue against the Claimant and dismiss the claims in its entirety. CONCLUSION My Lord, the failure of the Plaintiff to tender his letter of employment to show that the collective agreement was incorporated in his contract of service with the defendant in order to establish that he was unlawfully dismissed is fatal to his case. The same argument applies to the handbook not shown to have applied to the claimant’s employment as the letter or contract of employment not tendered is the only document that could have shown the relationship of the documents to the claimant’s employment. The claimant therefore failed to prove that his dismissal was wrongful. The claim for re-instatement in a contract of service of pure master servant relationship, without statutory flavor is untenable in law. So also is the claim for salaries, allowances and bonuses or the alternative claim for thirty million naira damages in a purely master servant relationship with the provision for determination is unsustainable and must fail. We urge my Lord to resolve all the issues against the claimant and dismiss the case for lacking in merit. DEFENDANT’S REJOINDER The Claimant’s in an attempt to sway the Court has wrongly asserted in his address that DW1 admitted the following facts:- (a) That he knew Garuba Ibrahim and that he confessed to suppression of cheques. (b) That the defendant is obliged to follow the handbook and the Collective Agreement in the claimant’s case. (c) That there was no allegation of manipulation of the bank flash drive in the query issued to claimant and that claimant was suspended for manipulation of Bank’s flash drive inter alia. We submit that Counsel’s address does not take the place of evidence but is only meat to high light evidence led by a party in his case. (See Ibikunle v Lawani [2008] All FWLR (Pt. 398) P. 359 @ 361 held 3. We submit further that the court is bound by it records and we most respectfully urge the court to rely on its record and the evidence before this court. The claimant on issue No. 1 has argued that he was not given fair hearing and that the procedure in Exhibit “8” and “9” were not followed by the defendant and cited Section 36 (1) of the Constitution of the Federal Republic of Nigeria as Amended. We submit that the fundamental right to fair hearing is not merely a technical doctrine. It is a principle of substance, which transcends the mere question of whether a party is entitled to be heard before a decision is reached thereupon. But whether he has in fact been accorded an opportunity to be heard. The claimant in statement of fact and evidence has admitted that he was queried, and he answered the query, and subsequently appeared before the defendants Inspectors and defended himself before he was subsequently suspended and dismissed. We submit that the claimant was duly accorded the opportunity to be heard and indeed given fair hearing. (See Cadbury (Nig) Plc v Oni [2013] All FWLR (Pt. 665) P. 251 at 256 held 6. We submit further that admitted facts need no further proof. The claimant in paragraphs 14, 15 and 22 of the statement of facts and paragraphs 15, 16, 18 and 23 of the witness statement on Oath admitted that he was queried and after answering the query appeared before the defendant’s Inspectors. We submit that claimant’s admission depicts that he was accorded the opportunity to be heard. The claimant cannot approbate and reprobate. (See Akaninwo v Nsirim [2008] All FWLR (Pt. 410) 610. We submit that the principle that conduct amounting to crime must first be a matter for criminal tribunal before disciplinary issue is not applicable to the claimant’s case. We submit that every citizen has a constitutional duty to report the commission of crime to the Police but the issue of investigation and prosecution lie solely at the discretion of the Nigeria Police Force. We submit that an employer has the right to dismiss an employee for gross misconduct. The claimant on issue No. 2 had submitted that the Honourable Court should take judicial notice of the fact that the employees of the defendant make monthly pension contributions which they are entitle to receive at the end of their employment. We submit that material facts to be admissible in evidence must be pleaded; neither party will be allowed to raise at the trial of a suit an issue of fact he has not pleaded. We submit further that where facts are not pleaded they are in admissible, (See Ipinbiye v Olukotun [1996] 6 SCNJ Pt. 74 at 76 held 1 and 2. We submit that the case of Skye Bank Plc v Akinpelu cited by the claimant does not help his case in anywhere and its facts are not applicable to the instant case. The principle that where the contents of a document are material it shall be sufficient in pleading to avert the effect thereof as briefly as possible without setting out the whole or any part thereof relied upon by the claimant in the case of Pinlaiye v Olukotun [1996] 6 SCNJ is not sacrosanct. We submit that for this principle to apply as held by the Supreme Court, the facts by which such a document is covered must be expressly pleaded. In the instant case the claimant has woefully failed to expressly plead facts to show the nexus between his contract of employment and the collect agreement (Exhibit “9”sought to be relied upon. We submit that the submission of the claimant that Exhibit “8” “9” governs his contract of employment with the defendant is erroneous and misleading. We submit that he defendant is not a party to Exhibit “9” and claimant has not shown in his evidence before this court that Exhibit “9” has been incorporated into his contract of employment or service. We submit that a court can only interpret or enforce the agreement entered into duly by the parties and is incapable of making any contract between them (See Ibami v Shell Petroleum Dev. Co. Ltd. [2005] All FWLR (Pt. 287) 832 the claimant has submit that his case is predicated on unlawful dismissal and not unlawful termination and cited the case of Chemiron International Limited v Egbujuonuma [2007] All FWLR (Pt. 395) P. 444 at 459 where the Court of Appeal held thus:- “ … The damages chargeable are prima facie that amount which the Plaintiff owned have earned had the employment continued ACCORDING TO THE TERMS OF THE CONTRACT THAT IS TO MATURITY, PERHAPS RETIREMENT AGE. In other word if the employment is for a specific period, a term certain but the contract is terminated in breach of the specific period of service, then he measure of damages would be the salaries due to the employee for the remaining unspent period of contract”. We submit, that in the absence of the claimant’s appointment letter or contract of employment and bearing in mind that there is nothing before the Court to show the claimant’s retirement age; that the claimant’s employment is for a specific period; a term certain. We submit that the case of Chemiron International Ltd. v Ebujuonuma (Supra) relied upon by the claimant does assist the claimant in anywhere claimant has failed to tender his letter of appointment to establish that his contract of employment was for a specific period, a term certain. The submission of the claimant that the terms of employment could be gathered from other sources apart from letter of employment and reliance on the case of Obu v NNPC [2003] All FWLR (Pt. 146) is not applicable to the claimant’s case. We submit that the Claimant had not shown that Exhibit “8” and “9” were incorporated into his contract of service nor had he adduced any evidence before the court to establish why his letter of appointment was not tendered before the court. We submit that the failure of the claimant to tender his contract of service amount to withholding evidence. We submit further that the Supreme Court held in Idoniboye-Obu v NNPC [2003] FWLR (Pt. 146) P. 959 at 962 held 1 thus:- “The court is not entitled to look outside the contract of service as to the terms and conditions; these must be gathered there from and/or from other sources which can be incorporated by reference to the contract as the case may be. It is the best and only way of deciding the rights of the parties under the contract ...”. We most respectfully urge my Lord, to dismiss this suit as all the authorities cited does not in any way avail the claimant. CLAIMANT’S FINAL WRITTEN ADDRESS ISSUES FOR DETERMINATION 1. Whether having regard to the facts of this case the claimant’s dismissal from employment by the defendant was lawful? 2. Whether the claimant is entitled to all the reliefs sought in his complaint? ARGUMENT ON ISSUE 1 It is a fundamental principle of the law of evidence that he who asserts must prove. It is also a settled principle of law that facts admitted need no further proof. We humbly refer to S. 123 Evidence Act 2011 as amended. The claimant at paragraphs 3 and 4 of his statement of facts and paragraphs 4 and 5 of his written statement on oath deposed that he was employed by the defendant on 22nd December 1993 as a clerk and later promoted to the position of officer III and that his employment with the defendant was permanent and pensionable. The aforesaid facts were admitted by the defendant at paragraphs 2 and 3 of the statement of defence and paragraphs 3 and 4 of the written statement on oath of Ogwu Chibuike Osheigue. It is respectfully submitted that, the fact that the claimant was an employee of the defendant and that his appointment with the defendant is permanent and pensionable is established. It is the claimant’s case that he was not given fair hearing prior to his dismissal by the defendant and that the disciplinary procedure set out in the defendant’s handbook and the collective agreement were not followed before he was summarily dismissed. The claimant testified via his written statement on oath filed on 22nd November, 2012 and tendered 8 Exhibits in proof of the fact that his dismissal was unlawful. CW2 tendered Exhibit OCL1, which was a confessional statement by Abdul Garba Mohammed also known as Garuba Abdullahi admitting that he committed the offence for which the claimant was wrongly accused of. The defendant’s sole Witness, Ogwu Chibuike Osheique under cross examination on 7th July 2014 admitted that there is a procedure for disciplinary of erring staff in the collective agreement and the defendant’s staff handbook which the defendant is obliged to follow. The claimant at paragraph 27 of his statement of facts expressly pleaded that he was dismissed contrary to the provisions of the disciplinary procedure contained in the defendant’s handbook. Volume 4 of the defendant’s handbook was tendered by the claimant and admitted as Exhibit “8” without objection by the defendant. By the provisions of Volume 4, Chapter 28, Page 14 lines 10 -15 of Exhibits 8 (defendant’s handbook) all cases involving fraud/losses must be investigated by the Inspection Department and their report made available to lines including Human Resource Department who will then forward to the appropriate staff Disciplinary Committee and that cases involving Termination/Dismissal are to go to Exco. The defendant itself admitted through its sole witness that it is obliged to follow the above stated procedure. The claimant testified that he received only one query and was later questioned by the defendant’s Inspectors for “non-reconciliation of Endpoint Suspense Account”. The claimant further testified that he was suspended for “Suppression of outward clearing cheques and manipulation of the Bank’s flash drive at Calabar Clearing Centre”. The defendant’s sole witness under cross examination admitted that there was no allegation of manipulation of the Bank’s flash drive in the query given to the claimant. It is submitted that the defendant is obliged to strictly follow its own procedure to submit all three allegations against the claimant (non-reconciliation of Endpoint Suspense Account; Suppression of outward clearing cheques and Manipulation of the Bank’s flash drive) to Inspectors for investigation and subsequently to the Staff Disciplinary Committee and then the Exco as provided for in Exhibit 8. We humbly submit that the defendant failed to follow the disciplinary procedure for staff set out in its Handbook, in the incident leading to the dismissal of the claimant in spite of its admission that it was bound to do so and we urge this Honourable Court to so hold. It is settled law that once the party on whom the burden of first proving the existence or non-existence of a fact adduces evidence which ought to reasonably satisfy the Court that the fact sought to be proved is established, the burden shifts to the party against whom judgment would be given if no more evidence were adduced. S.133 (1) and (2) of the Evidence Act, 2011. It is humbly submitted that the claimant led credible documentary evidence to show that the disciplinary procedure stipulated in the defendant’s handbook was not followed. It is further submitted that the burden of showing that the disciplinary procedure in the defendant’s handbook was followed in the dismissal of the claimant has shifted to the defendant and the defendant has failed to discharge that burden. It is the claimant’s case as per the depositions in paragraph 28 of his written statement on oath that he was dismissed contrary to the express provisions of the defendant’s handbook (Exhibit 8) as contained in Volume 4 chapter 28 pages 14 at lines 10- 15 thereof. The claimant tendered Exhibit 9 (The Collective Agreement) without objection from the defendant. Exhibit 9 page 10, Article 4 (iv) (a) (i) and (b) provides thus; “the law provides that Employees may be summarily dismissed for certain offences covered by the broad headings of gross misconduct such offences include: “(i) Proven cases of theft, fraud, dishonesty, defalcations and irregular practices in respect of cash, vouchers, records, returns or customer’s account: (c) Before summary dismissal is effected the employee shall be given a written query and afforded the opportunity of defending himself in writing except where the Employee has absconded. Exhibit 8 (defendant’s staff handbook) pages 1 under “General” Heading provides: “In all matters affecting staff, attention must be paid to any current Union Agreement to which the Bank is a party, such Agreement are binding upon the bank, and are to be observed in the spirit as well as the letter.” The implication of the above quoted provisions together with the admission of DW1 is that they form part of the terms of the claimant’s contract of service. It is submitted that Exhibit 9 is binding on the defendant. The allegation of gross misconduct/fraud leveled against the claimant was not proven prior to his dismissal by the defendant as required by Exhibit 9. There is no evidence of Police report or any report by the defendant itself or any decision by a court of law to show that the claimant was found guilty of the allegations of fraud made against him. In addition, the claimant testified that he was not given the opportunity to defend himself against the fresh allegation of suppression of outward clearing cheques and manipulation of the bank’s flash drive prior to his dismissal. It is submitted that the claimant’s dismissal contrary to the disciplinary procedure set out in Exhibits 8 and 9 is wrongful and unlawful. The defendant’s argument at paragraph 3.15 of its Final Address that Exhibit 9 is not binding on the defendant is misconceived. The defendant sole witness admitted under cross examination that the defendant is bound to follow the disciplinary procedure in the Collective Agreement. We humbly urge this Honourable Court to give full probative value to Exhibits 8 and 9. The allegations made by the defendant against the claimant of non-reconciliation of Endpoint Account Suppression of outward clearing cheques and manipulation of the Bank’s flash drive are clearly of a criminal nature. The defendant unwillingly conceded to this fact when it admitted that it reported the matter to the Nigerian Police. It is respectfully submitted that matters reported to the Nigerian Police are criminal in nature and not case of negligence as alleged by the defendant. It is a well settled principle that conduct amounting to crime must first be a matter for the criminal tribunal (court) before disciplinary issue. Please see the case of (i) Cadbury (Nig) Plc v Club Omni O. Oni [2013] All FWLR (Pt.665) 251 at 273 Para B. The claimant was arrested and detained by the Nigerian Police at the instance of the defendant and was investigated by the Police on the allegation of fraud made against him by the defendant. The claimant testified at paragraph 20 of its written statement on oath that he was told by the Police that the defendant’s Manager alleged that he was the one who stole the money. It is in evidence before this Honourable Court that the claimant was suspended indefinitely by letter dated 1st March, 2012. It was from the letter of suspension (Exhibit 6) that the claimant became aware of the fresh allegations made against him by the defendant of alleged involvement in suppression of outward clearing cheques and manipulation of the bank’s flash drive at Calabar clearing center. The claimant subsequently dismissed by the defendant vide letter dated 23rd July, 2012 without following the procedure led down in Exhibit 8 which the bank was bound to follow as admitted by DW1. The claimant was never given an opportunity to defend himself against the fresh allegations of suppression of outward clearing cheques and manipulation of bank’s flash drive. Given the claimant’s 18 years long standing service to the defendant which was destroyed by of the serious and rather criminal allegations levelled against him by the defendant, it is only fair that the claimant should have been accorded every opportunity to defend himself before any disciplinary action was taken against him. The position of the law on the issue is unequivocal. S.36 (1) of the constitution of the Federal Republic 1999 as amended provides that: “In the determination of his rights and obligations including any question of determination by or against any government or authority, a person shall be entitled to a fair hearing within the reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality”. It is submitted that the claimant was not given the opportunity to defend himself against the allegations of fraud levelled against him. It is respectfully submitted that this Honourable Court will not sit back and see a person’s fundamental rights trampled upon. It is the humble contention of the claimant that the defendant’s averments at paragraphs 5, 7, 8 and 20 of the statement of defence that the claimant was Head of Operations at the defendant’s clearing center and that his duty included the whole procedure and process associated with clearing at the defendant’s clearing center is wholly false and a futile attempt by the defendant to justify the unlawful dismissal of the claimant. The claimant tendered Exhibit 3 which includes an internal memo of the defendant, which document clearly spelt out 3 (Three) distinct aspect of clearing and the 3 (Three) different employees of the bank obliged to carry out those functions including the claimant. Secondly it is also apparent from Exhibit 3 that the claimant was not the head of operations at the defendant’s clearing center as falsely alleged by the defendant and he was not responsible for the entire clearing process. The defendant’s sole witness admitted under cross examination on 7th July 2014 as follows: “Specific tasks are assigned by internal memo. (Witness is shown Doc. 3). It is a letter written by my manager. Specific tasks were assigned to different employees including the claimant. The functions fall under clearing of cheques. It is true that the claimant was not referred to as head of clearing. The manager was assigned the task by the letter. Yes the manager D. S. Ekpoh was in a higher position than the claimant. Yes it is impossible for one person to carry out all the functions relating to the clearing”. It is submitted that the defendant’s averments at paragraphs 5, 6, 7, 8 and 20 of the statement of defence and paragraphs 7, 9, 10 and 24 of the written statement on oath are false as they contradict the testimony of DW1 under cross examination. We humbly submit that the claimant’s dismissal by the defendant was unlawful and we urge this honourable court to so hold. ARGUMENT ON ISSUE 2 It is the humble submission of the claimant that he is entitled to all the reliefs endorsed upon his statement of facts in the substantive suit herein. The claimant during the trial tendered Exhibits 1 and 2 which corroborate his evidence on oath as per paragraphs 2, and 5 of his statement on oath to show that he was an employee of the defendant’s bank, a fact which was also admitted by the defendant’s witness at paragraphs 3 and 4 of his written statement on oath sworn on 9th May, 2014. The claimant also tendered Exhibit 3 as documentary proof that he was given one (1) query for non-reconciliation of Endpoint Account and that it was not his duty to scrutinize and reconcile outward clearing items, which were the items that led to the loss suffered by the defendant. The claimant’s response to the said query is Exhibit 4 before this Honourable Court. The claimant tendered Exhibit 6 to establish the fact that, he was never given an opportunity to defend himself in respect of the fresh allegations made against him by the defendant. The claimant tendered Exhibit OCL“1”, through CW2, a confessional police statement by one Abdul Garba Mohammed also known as Garuba Abdullahi admitting to Suppression of cheques, which was one of the allegations levelled against the claimant. The claimant tendered Exhibits 8 to show that the disciplinary procedure as stipulated in the defendant’s handbook was not followed by the defendant before he was dismissed for gross misconduct. The defendant’s sole witness admitted under cross examination admitted that the defendant was bound to follow the procedure laid down in Exhibit 8. The claimant tendered Exhibit 9 as documentary evidence that the disciplinary procedure in the collective agreement was not followed by the defendant in the dismissal of the claimant, whereas Exhibit 8, expressly provides that the provisions of the collective agreement (Exhibit 9) “is binding upon the Bank and is to be observed in the spirit as well as the letter”. Apart from all the preceding facts the defendant never contested the fact that the bank was bound by the express provisions of Exhibits 8 and 9 both in its statement of defence and statement on oath. It is submitted that the claimant has proffered credible evidence to sustain all his claims. During the trial of this case, the following material facts were established: (i) That the claimant was employed by the defendant on 22nd December, 1993 and rose to the position of officer 3 as can be seen from paragraphs 4 of the claimants statement on oath and his monthly salary before his unlawful dismissal was N86,918,66 as a the time claimant was dismissed. (ii) It is apparent from Exhibit 2 that the defendant usually pays the sum of N336,000 annually as housing allowance to the claimant. As per the credit entry of 6th January 2012 in Exhibit 2, the claimant’s Staff Bank Account Statement. (iii) The defendant by letter dated 23rd July, 2012 dismissed the claimant allegedly for gross misconduct without recourse to procedure as stipulated by Exhibits 8 and 9 with effect 23rd July, 2012. (iv) The defendant admitted the fact that the claimant’s employment was permanent and pensionable in paragraph 4 of its statement on oath, but that the claimant is not entitled to his pension because he was dismissed for misconduct. It is the humble submission of the claimant that this Honourable Court can lawfully compute the loss suffered by the claimant as a result of the unlawful acts of the defendant to adequately compensate him for being deprived of his livelihood from 23rd July, 2012 till date from the above mentioned facts. We humbly submit that the claimant has established his case on the balance of probability and respectfully urge this Honourable Court to find and hold that the claimant is entitled to all the reliefs endorsed upon his statement of facts in the substantive suit herein. RESPONSE TO ISSUES IN THE DEFENDANT’S FINAL ADDRESS The Defendant in paragraph 3.01 of its Address has argued that the claimant’s averment at paragraph 4 of the statement of fact and paragraph 5 of the written statement on oath that his appointment was permanent and pensionable was denied by the defendant. The claimant submits that the above assertion is deliberate attempt to mislead this Honourable Court. The sole witness of the defendant at paragraphs 3 and 4 of his written statement on oath sworn to on 9th May, 2014 admitted in paragraphs 2 and 5 respectively of the claimant’s written statement on oath sworn to on 22nd November, 2012 that the claimant was an employee of the defendant and that his employment is permanent and pensionable. The contention of the defendant in paragraph 3.01 of its final address is with respect untenable in law. An examination of paragraph 4 of the claimant’s statement of fact and the response of the defendant in paragraph 3 of its statement of defence will show that the defendant merely made a general denial of the fact pleaded by the claimant. It is a settled principle of law that a general denial amount to an admission and this Honourable Court is respectfully urged to apply the aforesaid principle in this instance. Furthermore, the claimant led unchallenged documentary evidence as per Exhibit 2 his Staff Account Bank Statement to establish the fact that he was entitled to other allowances like his housing allowance apart from his monthly salary. The claimant submits that it is a notorious fact, which this Honourable Court is invited to take judicial notice of that the employees of the defendant bank make monthly pension contributions, which they are entitled to receive at the end of their employment. The aforesaid pension entitlement of the claimant cannot be converted by the defendant upon a trumped-up allegation of gross misconduct we submit with respect. It is trite that a Court acts on evidence and not pleadings in resolving issues of facts arising from a case. It is also settled law that a fact admitted is taken to be established and requires no further proof. We humbly refer to S. 123 Evidence Act 2011. We humbly submit that the fact that the claimant was an employee of the defendant and that his appointment is permanent and pensionable is established. It is submitted that the defendant’s contention in paragraph 3.03 of its Final Address is misconceived. The general denial by the defendant in paragraphs 19 and 20 of the defendant’s statement of defence amounts to an admission of the facts stated in paragraphs 27 and 28 of the claimant’s statement of fact in this case. The defendant failed to rebut the testimony of the claimant that he was never given an opportunity to appear and defend himself before any staff disciplinary committee based upon the allegations made by the defendant. To worsen matters, the claimant was purportedly dismissed in respect of fresh allegations not contained in the query issued to him by the defendant as per Exhibit 3 in this proceeding. The defendant’s submission in paragraph 3.07 of its final written address that the evidence of DW1 in paragraphs 7, 8, 9 and 10 of his statement on oath was not challenged nor contradicted under cross examination is materially misleading. It is submitted that the above stated assertions of the defendant are incorrect. On the contrary, the allegations paragraphs 7, 8, 9 and 10 of the defendant’s written statement on oath were challenged and contradicted under cross examination. On the 7th July 2014, the defendant’s sole witness, Ugwu Chibuike Osheighe under cross examination admitted as follows: “The specific tasks are assigned by internal memo. (Witness is shown Doc.3) It is a letter written by my manager. Specific tasks were assigned to different employees including the claimant. The functions fall under clearing of cheques. It is true the claimant was not referred to as Head of Clearing. The Manager was assigned the task by the letter. The Manager D. S Ekpor was in a higher position than the claimant. Yes it is impossible for one person to carry out all the functions relating to clearing”. It is submitted that the above mentioned admissions by the defendant witness show that the allegations in paragraphs 7, 8, 9 and 10 of his written statement on oath are false. It is submitted that the claimant was not the Head of Clearing or head of operations; the claimant was not responsible for the whole procedure and process associated with clearing as it is impossible for one person to carry out all the functions relating to clearing. The claimant had a specific task assigned to him of inward clearing and not outward clearing. It is further submitted that the claimant could not be negligent for acts outside his scope of duty as stated in the internal memorandum i.e. Exhibit 3. The defendant’s argument in paragraph 3.07 of its final written address to the effect that; “the claimant’s contention in paragraph 22 of his written statement on oath attempting to absolve himself by asserting that the loss the defendant suffered was as a result of confessed criminal act of a third party and relying on Exhibit OCL1 as proof, is untenable as the defendant’s position is that but for the negligent discharge his duties, such criminal act could have been detected before it occasion such a colossal loss to the defendant” is clearly misconceived. It is clear from Exhibits 3 and 6 that the allegations against the claimant were non-reconciliation of outward clearing items, suppression of cheques and manipulation of bank’s flash drive which as earlier submitted are acts of fraud. It is apparent from the complaint of the defendant to the Police that the claimant was suspected of committing a criminal offence. The defendant’s sole witness admitted under Cross Examination on 7th July 2014 that: “I am aware that employee of Zenith Bank was involved in this matter. I know him as Garuba Ibrahim confesses to suppression of the Cheques”. It is submitted that Exhibit OCL1 is relevant in showing that the dismissal of the claimant by the defendant was unlawful as there is evidence on record showing that the criminal acts for which the claimant was accused of, were committed by some other person. It is submitted that the defendant’s submission in paragraph 3.07 of its final address materially contradicts the contents of the internal memorandum annexed to Exhibit 3 and the testimony of DW1 during cross examination on 7th July 2014. The defendant has deliberately misconstrued the case of the claimant on which it bases its arguments in paragraphs 3.08 to 3.16 of its final written address. It is trite law that a case is only authority for what it decides and nothing more. Each case must be considered on its own particular or peculiar facts or circumstances and no one case is identical with the other or another. We humbly rely on the case of Skye Bank Plc. v Akinpelu (2010) FWLR (Pt.526) 460 @ paragraph E-F ratio 17. It is humbly submitted that the cases cited by the defendant at paragraphs 3.08 - 3.16 of its final address are not applicable to this case as the facts of those cases are different from the claimant’s case. This Honourable Court is obliged to decide this case on the peculiar facts and circumstances of this case. It is settled law that where the contents of a document are material, it shall be sufficient in any pleading to aver the effect thereof as briefly as possible without setting out the whole or any part thereof. We rely on the case of Ipinlaiye v Olukotun [1996] 6 SCNJ 74 at 87. It is submitted that the claimant did not allude generally to breach of the provisions of the collective agreement or defendant’s staff handbook in breach of the rules of pleadings as wrongly argued by the defendant at paragraphs 3.10 - 3.13 of its final written address. On the contrary the claimant specifically set out in his statement of fact and in his evidence the specific requirements of the disciplinary procedures in the defendant’s staff handbook and the collective agreement which the defendant failed to follow in the dismissal of the claimant from employment. The defendant’s argument at paragraph 3.12 of its final address, that the absence of the claimant’s letter of appointment/Contract of Service in evidence before this Honourable Court is fatal to the claimant’s case is misconceived. The fact that the claimant was an employee of the defendant is not in issue. The claimant tendered Exhibit 8, the defendant’s staff handbook containing its disciplinary procedure which outlines the steps the defendant must take in the cases involving fraud/losses and testified that the procedure was not followed. The defendant’s sole witness admitted under cross examination that there is a disciplinary procedure in the defendant’s handbook and the collective agreement which applied to every staff which the defendant is bound to follow. Exhibit 8 itself under “General”, states that in matters affecting staff, the defendant is bound by and must observe provisions of collective agreements in the spirit as well as letter. It is submitted that the documentary evidence tendered by the claimant speaks for itself. It is further submitted that the claimant pleaded material facts and led credible evidence on which this Honourable Court can rely on to reach its decision in this case, even in the absence of his letter of appointment. It is submitted that the defendant’s submissions in paragraphs 3.17 to 3.20 of its final written address are with respect otiose. The principle of ordinary master and servant relationship cannot apply in the circumstances of this case. The claimant led credible documentary evidence in the form of Exhibits 8 and 9 which governs the claimant’s employment with the defendant and of which the defendant’s witness admitted under cross examination is binding on the defendant. The claimant’s claim is also based on his fundamental right to fair hearing which is guaranteed by the Constitution of the Federal Republic of Nigeria. It is submitted that there is no question of the court speculating in this case as erroneously argued by the defendant as there is ample evidence before this Honourable Court on which to reach its decision. It is submitted that the defendant’s argument in paragraph 3.21 to 3.23 of its final written address is faulty and an attempt to mislead this Honourable Court. The claimant tendered credible evidence to show that he was only given one query on non-reconciliation of End-Point Account and of which the defendant’s Inspectors questioned him. The claimant tendered Exhibit 6 to show that fresh allegations of fraud were made against him after the visit of the Inspectors. The claimant led credible evidence to show that he was not given fair hearing and that the disciplinary procedures set out in Exhibits 8 and 9 were not followed by the defendant in dismissing him. The claimant stated in Exhibit 4 that he was not responsible for the loss to the defendant. The claimant tendered Exhibit OCL1 to show that one Abdul Garba Mohammed also known as Garuba Abdullahi confessed to committing the offences of which the claimant was accused of by the defendant. The evidence of DW1 particularly paragraphs 7, 8, 9, 10, 11, 21 and 24 of his statement on oath were challenged and contradicted during cross examination on 7th July 2014. The defendant out of desperation to justify its unlawful dismissal of the claimant has cited a number of cases as authorities to support its position. The claimant submits that upon a careful review of the aforesaid cases, it is apparent that those cases actually support the claimant’s case. The claimant submits that there is a world of difference between a claim of damages for “wrongful termination” and ‘wrongful dismissal’. The aforesaid distinction was succinctly stated in the case of Chemiron International Limited v Egbujuonuma reported in 2007 All FWLR (Part 395) Page 444 particularly at page 459, where the Court of Appeal stated as follows: “There is a need for some clarification on the issue of dismissal and termination of employment. There are two major circumstances requiring different considerations. At common law, an employer/employee is at liberty to terminate the relationship, upon the giving of notice within a specific period of time or upon the payment of same amount of money in lieu of the notice. A termination of the employment by either party without such requisite notice only entitles the plaintiff of the amount which he would have earned over the period of notice. Where a wrongful dismissal is alleged and established, the damages chargeable is prima facie that amount which the plaintiff would have earned had the employment continued according to the terms of the contract that is to maturity, perhaps, retirement age. In other words, if the employment is for specific period, a term certain, but the contract is terminated in breach of the specified period of service, then the measure of damages would be the salaries due to the employee for the remaining unspent period of the contract. The aggrieved employee is of course expected to minimize loss by seeking alternative gainful employment”. It is submitted, that the substantive suit herein is clearly founded upon unlawful dismissal and not unlawful termination. Consequently, the submission of the defendant that the claimant herein is only entitled to one month salary in lieu of notice is untenable in law. Furthermore, the defendant has made heavy weather of the fact that the claimant did not tender his letter of employment. It is submitted that the primary duty of this Honourable Court is to do substantial Justice. It is further submitted that from Exhibit 1 (the claimant’s Staff Identity Card), Exhibit 2 (Claimant Staff Bank Statement of Account), Exhibit 8 (Defendant’s Employees Handbook), and Exhibit 9 (The Collective Agreement) considered together with the material admission made during trial by the defendant, this Honourable Court can properly grant the claimant’s reliefs even upon minimal evidence. It is trite law, that the facts of terms of employment could be gathered from other sources apart from the letter of employment, and we humbly urge this Honourable Court to deduce the terms of employment from the documentary evidence already tendered and the admission of the defendant. It is the respectful submission of the claimant that he has tendered documents prepared by the defendant which establish the fact of his employment relationship with the defendant. We respectfully rely on Chemiron’s case Supra for the above mentioned propositions of law. Please see also the case of Idoniboye - Obu v N.N.P.C [2003] All FWLR part 146 at page 959. With reference to the case of Abalogu v S.P.D.C Limited [2013] FWLR (Pt. 171) P. 1627, the claimant respectfully submits that from the totality of the evidence before this Honourable Court, Exhibits 8 and 9 are by implication binding upon the parties in this suit, as the handbook expressly refers to the collective agreement. Furthermore, DW1 admitted that the defendant is bound by Exhibit 8 and 9. CONCLUSION It is the respectful submission of the claimant that he has successfully discharged the burden of proof as required by law for this Honourable Court to grant all the reliefs endorsed upon the claimant’s statement of facts filed on 22nd November 2012. The depositions in the claimant’s written statement on oath and the documentary evidence tendered by the claimant clearly tilts the weight of evidence in favour of the claimant. From the evidence in this case, the claimant has proven on the balance of probability that he was wrongfully dismissed by the defendant. The claimant herein has also proved on the balance of probability that his fundamental right to fair hearing was violated by the defendant by its failure to afford the claimant the opportunity to defend itself against all the allegations made against him. In the premises, the claimant respectfully urges this Honourable Court to enter judgment in its favour in terms of the reliefs endorsed on its statement of facts filed on 22nd November 2012.