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NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date:23RD SEPTEMBER, 2014 Suit No. NICN/ABJ/231/2012 BETWEEN MR. DONALD IHEDIOHA CLAIMANT AND SEVEN-UP BOTTLING CO. PLC DEFENDANT REPRESENTATION J. I. Okpara Esq for the Claimant. Mohammed Sallawu Esq for the Defendant. JUDGMENT By a complaint dated and filed on 6th August, 2012, the claimant ciliate is for:- 1. A Declaration that the termination of appointment of the claimant on the 23rd August, 2011, is wrongful and unlawful. 2. The sum of N50,000,000.00 (Fifty Million Naira) Only being damages for wrongful and unlawful termination of appointment of the claimant. 3. The sum of N40,000,000.00 (Forty Million Naira) Only being damages for defamation of the claimant’s character. 4. The sum of N5,000,000.00 (Five Million Naira) Only being damages for breach of claimant’s constitutional right to fair hearing. 5. The sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) Only being the cost of this suit. The complaint is accompanied with the claimant’s statement of claim, witness statement on Oath, lists of witnesses and documents to be relied upon. In reaction to the claimant’s action the defendant entered a memorandum of appearance dated 5th November, 2012 and filed along with the defendant statement of defence and counter claim, witness statement on Oath, list of documents to be relied upon. The matter went on trial, the claimant testified on his behalf 14 Exhibits, while the defendant called two witnesses Mr. Danjuma Garba, a Confidential Secretary and Mr. Alikamal a Senior Internal Auditor and Assistant Manager both of Seven-up Bottling Co. Plc. Thereafter, parties exchanged their final written addresses and the matter adjourned for Judgment, but could not be read due to the JUSUN Strike. In adopting the Defendant/counter claim final brief’s of argument the learned counsel to the defendant raised 2 issues for the determination of the court which are:- 1. Whether or not, from the totality of the evidence before the court, the Plaintiff had discharged the onus of proof placed upon him by Law on the preponderance of evidence led on record to entitle him to a grant of the reliefs sought in this suit. 2. Whether the defendant has proved counter-claim to warrant judgment to be in his favour. On the 1st issue the defendant counsel submitted that it is necessary to know the category of employment in which the claimant falls before considering his claims and applicable law. His Lordship Katsina Alu (JCN) as the then was in OLANREWAJU V AFRIBANK PLC (2001) FWLR (PT. 72) PAGE 2008 AT 2017, PARAS E – F, stated categories of employment thus:- Generally, employments fall into three categories, viz:- a. Master and Servant. b. A servant holds an office at pleasure. c. Employment that is governed by statute. He submitted that from the evidence adduced by both parties and the documents tendered before the court, it is obvious that the claimant’s employment is not governed by statute. He said the Exhibit admitted in evidence especially the offer of appointment as Graduate Trainee relied upon by the claimant, leaves no one in doubt as to the category of the employment the claimant’s falls into is Master and Servant. He then submitted that before considering the mode of terminating the employment under Master and Servant category, counsel also argued that he is of the view, that claim of the claimant, the pivot upon which other claims stands is a declaratory relief. In DUMEZ NIGERIA LIMITED V NWAKHOBA (2009) ALL FMLR (PT. 461) PG. 842 AT 850, PARAS F – G Mohammed JSC (as he then was) stated:- The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory releifs are not granted even on admission by the defendant. Where the plaintiff fails to establish his entitlement to the declaration by his evidence. In other words, declaration of right as sought by the plaintiff respondents in their first relief against the defendant/appellant in the present case cannot be made on admission or in default of pleading by the defendant not to talk of reliance on the evidence of the defendant witness: Wallersteiner V Mair (1974) 3 ALL ER 217 at 251, where Beckley L. J. said:- It has always been my experience and I believe it to be a practice of long standing that the court does not make declaration of right either on admission or in default of pleading … But only if the court was satisfied by evidence. Also Matzger V Department of Health and Social Security (1977) 3 ALL ER 444 at 451. This statement of the law was adopted by this court in Vincent Bello V Nagnus Eweka (1981) 1 SC 101 and also applied in Motonwase V Sorungbe (1988) 5 NWLR (Pt. 72) 90 at 102. Counsel said that from the foregoing the claimant has not by any means proved the reliefs sought by declaration. Since claimant have failed to prove the main claim other ancillary claims must fail. The Court of Appeal in NWAGWU V OSEMEWAM (2007) ALL FWLR (PT. 376) PG. 779 PARA B. Where Bulka Chuwa JCA held:- In any case, the substantive claim before the lower court has that of negligence against the appellants. The claims against the 3rd defendant/2nd Respondent is ancillary to the substantive claim and cannot succeed unless and until the substantive claim proved against the appellants. On this note, he urged the court to dismiss the claims of the claimant in its entirely, as the main reliefs based on the evidence adduced and the document before the court has not proved the declaratory relief sought. Termination. The letter stated simply. “We regret to advise that your services are no longer required with the company. You are therefore terminated from the service of the company with immediate effect”. That all other insinuation as to why the defendant terminated the appointment of the claimant only exist in his imagination. No reasons was given for the claimant’s termination; as the letter to the effect is self explanatory. Per Aka’ahs JC (now JSC) in OCEANIC BANK INT’L LTD V UDUME BRAYE (2008) ALL FWLR (PT. 430) PG. 781 PARAS D – E, held:- Even if the termination was wrongful, the plaintiff was only entitle to one month’s salary in lieu of notice and that is the amount of damages he would be awarded for wrongful termination of appointment. The learned counsel said based on the above authority, all damages claimed by the claimant should be dismissed as the claims has no legal foundation upon which it could stand. He urged the court to dismiss the claim for wrongful and unlawful termination. On the issue of defamation of claimant’s character the learned counsel submitted that it is trials court duty in an action for defamation to determine whether words complained of convey defamatory meaning. A person’s reputation is not based on the good opinion he has of himself, but the estimation in which other hold him. The claimant did not call any witness to buttress his point on the alleged defamation. He abandoned his claim as same was not supported by evidence. Hence this claim should be dismissed and the claim be discountenanced. On issue of fair hearing the learned counsel further said the claimant when it issued the said query dated 20th July, 2012 and requested for the claimant to respond same. The defendant observed the claimant’s constitutional right to fair hearing by allowing the claimant to defend himself in writing via the claimant’s response to query dated 2nd July, 2012 and also had meetings with the top management officials of the company on two occasions. Assuming without conceding that the court decides not to dismiss the claims on the aforementioned ground, counsel submitted that the claimant has not prove his case before this Honourable Court. That he had earlier stated the evidence adduced and the documents admitted in evidence, the nature of employment of the claimant with that of the defendant is basically in the category of master and servant. In the Offer of Appointment as Graduate Trainee Letter, dated 13th December, 2007. The sub heading. TERMANTION OF APPOINTMENT provide thus:- During the probationary period, the appointment may be terminated by either party giving two (2) weeks notice or payment in lieu of notice. “After confirmation of appointment, the notice is one month or payment in lieu”. The letter of the defendant, dated 3rd August, 2011 termination of appointment provides thus:- Meanwhile, you will be paid your salary up to and including 29th August, 2011 together with one(1) month salary in lieu of notice less any indebtedness to the company. The letter, termination of appointment, clearly follows the terms stipulated in the letter of appointment dated 13th December, 2007. Alagoa JCA in NIGER – BENUE TRANSPORT CO. LTD V OKEKE (2008) ALL FWLR (PT. 429) PG. 491 AT 506, PARAS B –C the court held:- In Katto V CBN which was cited by the respondent with relish and approval the Supreme Court per Uwaifo JSC had stated that, “In a written documented contract of service, the court will not took outside the terms stipulated or agreed in deciding the rights and obligation of the parties. What this simply means is that once the document embodying the contractual relationship between the employer and employee has been identified, anything outside the terms and conditions so agreed upon by the employer and employee as regulating their contractual relationship is extraneous to it and will not be relied upon”. The learned counsel for the defendant contended that all the insinuations and issues of alleged fraudulent dealings or non purported observation of fair hearing was not contained in the letter of termination. It is counsel submission, that the claimant was not deprived of fair hearing and such not entitled to any claim under such, claimant was given ample opportunity to respond to the query, which he did. While on the final leg of the claimant’s claim which is for the cost of the suit, if it is professional fee that the claimant is asking for it must fail, the learned counsel for the defendant relied on the discussion of the court. In conclusion counsel for the defendant submitted that the claimant has failed woefully, based on the evidence before this court. He therefore urged the court to dismiss the claim with heavy cost. The learned counsel for the defendant thereafter defended the counter claim submitting that the defendant counter claimant has succinctly proved its counter claims against the claimant. The audited account placed before the court shows glaringly the role played by the claimant in racketeering the defendant’s TD1 bonus incentives at a total sum of N1,521,850.00K. The defendant counter claimant has not been able to explain the reason, why he deliberately, negligently and fraudulently acted in his dealing as to issuance of (DAC) Dealer Allocation Cards. This the claimant did, contrary to the defendant avowed laid down mode of operation. The TD1 schedule must be prepared by the claimant/defendant to counter – claim did not signed Dealer Allocation Cards (DAC) for two dealers and the dealers were not able to provide cards issued to them by claimant when visited by the Audit team in the course of auditing. Counsel said by the action of the claimant, knowingly and fraudulently deviating from the defendant’s age long tested and reliable mode of operation, the defendant’s TD1 Bonus Schedule within the period of under review, was racketeered to the excess of 1710 TD1 incentives cases valued at a total sum of N1,521,850.00K. In the light of the foregoing, he urged the court to give Judgment in favour of the counter claimant. On the part of the claimant his counsel raised two issues for determination to wit:- 1. Whether from the evidence adduced in this suit the claimant is not entitled to the relief sought. 2. Whether the defendant in this case has successfully proved its counter-claim to avail it of the relief sought from this court. Issue one Whether from the evidence adduced in this suit the claimant is not entitled to the relief sought. The claimant, in Exhibit PW7 which is his response to the Query, Exhibit PW6, laboriously refuted the allegation and maintained that the allegations were NOT HIS DEED and should rather be shown the documents evidencing the deviation from the standard mode of operation of the defendant and that of the alleged fraudulent activities by him. Whether the termination of the employment of the claimant was with or without reason. In paragraph 5 of the defendant’s statement of defence, it averred: That the termination was made without reason. Reason for Termination of claimant’s appointment: Defendant’s counter-claim shows that the defendant proffered a reason for the termination of claimant’s appointment, that reason is alleged fraud. There is no way the process that led to the termination of the claimant’s appointment will be separated form the termination letter. These counter-claim which constitute the relief sought by the defendant/counter-claimant points to one direction; the reason for termination of claimants appointment is alleged fraud. Suffice it to note, that the episode or imbroglio which was triggered off with the routine visit of the defendant audit team to Suleja depot culminated in the termination of the claimant. The defendant in paragraph 14 of the statement of defence stated that “it conducted an internal audit on its Sulaja depot in Abuja region between 27th June, to 1st July, 2011 after which an Internal Audit Report dated 20th July, 2011 was prepared. The sequence of events that followed shows clearly how unfairly the claimant was treated. After the query (Exhibit PW6), which is based on the audit report, claimant reply in Exhibit PW7, first suspension letter (Exhibit PW8), setting up of the Investigation Team who were expected to hear from the parties, second suspension letter (Exhibit PW9), to allow for further investigation and finally terminated letter (Exhibit PW10), all these done without producing the alleged forged documents shows clearly how unfairly the claimant was treated. From the first suspension letter, to the second letter, the investigating team did not deem it wise and necessary to avert their minds, to the call for the production of the documents alleged to have been forged as in line 8 of Exhibit PW7. In line with the findings of the audit report, the defendant in paragraph 16 of the statement of defence averred that “TD1 sales (Promotion bonuses were racketeered by the claimant with the aid of the defendant’s former marketing manager and the defendant’s S.A.M. (Salesmen/Driver). In paragraph 17, the defendant posited that the claimant with the aid of the “Co-accused persons or employees as in above “Inflated the defendant Suleja depot’s TD1 incentives schedule by 1,145 cases valued at N1,019,000.00”. Furthermore, in paragraph 18 of the same statement of defence, it claimed that “the claimant with the aid of the defendant former marketing manager and salesman (SAM), within the same period under review attracted excess TD1 incentives cases of 565 valued at N502,805.00 by issuing fake TD1 sales invoices”. In paragraph 19, the defendant opined that contrary to the defendant’s company laid down mode of operation, the claimant did not prepare TD1 Sales Register within the time under review. The learned counsel submitted that in a nutshell, the entire statement of defence/counter-claim, showed clearly that there was an existing undercurrent, leading to and which climaxed in the termination of the claimant’s appointment. The learned counsel submitted that the defendant has not been able to convincingly establish that the acts were perpetuated by the claimant. The claimant in Exhibit PW7 stated that allegation of fraud was not traceable to him, and in return called for the exact incentive schedules, that contained the alleged 1,145 cases that the extent of his involvement in the whole fraudulent activity. This the defendant could neither produce during the audit route visit in Suleja, and during the investigation by the investigating team nor during trial. On the second issue which involved raising of fake sales invoices to attract excess TD1 of 565 cases valued at N502,850.00 the claimant in Exhibit PW7 also averred that his job as sales officer, never included raising sales invoices. And that no time did he raise sales invoice let alone “fake sales invoices”. That the procedure was for his SAM’s (Salesmen) that supply and bring the sales invoices for him (the claimant) for preparation of TD1 weekly and monthly reports; But since the allegation appeared like a statement of fact, the claimant requested that the invoice allegedly raised by him should be produced. Counsel said the defendant could either produce the alleged fake sales invoices, it was neither pleaded along with their statement of defence/counter-claim, nor was it exhibited or tendered during trial in the court in compliance with Order 3Rule 4 of The Rules of National Industrial Court. Counsel said it is trite rules of court are meant to be obeyed. See the case of MOBIL V CHIEF MONOKPO (2003) NSQL VOL. 16, NIKI TOBI, JSC ON PAGE 532 – 533. Where evidence is adduced or attempted to be adduced on fact not pleaded, such evidence should not be allowed to be given and where it had been given, it should be discountenanced or expunged. See N.D.I.C. ORANU (2001) FWLR (PT. 82) 1974 RATIO 4; ONMADE V ACB PLC (1997) 1 NWLR (PT. 480) 123; NJOKU V EME (1973) 5SC 293; OTAIN SONS LTD V IDRIS (1999) 6 NWLR (PT 606) 330 AND LANA V UNIBADAN (1897) 4 NWLR (PT. 64) 245, 258-259. On Duty Imposed on an employer who gives reason for termination of employment of an employee. The learned counsel submitted that the employer (master) has the right to terminate the appointment of his employee (servant) with or without reason and at anytime. This is settled law and cannot be disputed. It is also true, that there is a duty imposed on an employer who gives reasons for terminating the appointment or employment of his employee. In a long list of cases, it is settled law that; Although it is trite that an employer is not obliged to give any reason for firing his servant, all the same, it is settled law that where he has proffered any reason at all, his is obliged to satisfactorily prove same as the onus is on him in that regard, otherwise, the termination/dismissal may constitute a wrongful dismissal without more. It is also settled law that there is a duty on him who asserts the affirmative to prove same. It is trite law that he also asserts the affirmative has the duty to prove same. There is no duty, generally, on a party to prove the negative. See IMONIKHE V UNITY BANK PLC (2011) VOL. 202 LRCN PG. 87 ZEE. The defendant issued a query based on the findings of the audit team Exhibit PW6. In the claimants reply that followed there was a call for the production of the documents by the defendant for clarification and to put the facts straight. But the defendant set up an investigation team to look into the case without the benefit of explanation from the claimant. That a cursory look at the Audit report from where the query emanated, will reveal the facts being canvassed in this address, showing the inappropriate and lack of fair hearing meted the claimant. The Audit Report: This is faulty foundation of the entire process of the termination of the claimant’s appointment. The following are issues contained in the audit report. 1,145 TD1 cases inflated by the Marketing Manager and not the claimant. The audit report alleged that TD1 was inflated by 1,145 cases valued at N1,019,000.00 as a result of fictitious, sales allocations to some dealers. In the analysis table to paragraph 1 of the audit report, the auditors made a detailed explanation. The auditors claimed to have reviewed the sales recorded in the dealers cards of the following dealers, Mrs. Festus, Ocheka E, Mrs. Moses, Fandoma, Felicia Ogbonna, Celestine Ozor and Emma. The audit report through the analysis table also explained that these figures in the dealers cards were compared with the ‘Marketing Managers’ TD1 report. The report went ahead to show that the alleged excess TD1 of 1,145 cases came as a result of the variance between the entries in the dealers allocation cards and the Marketing Manager’s TD1 Report. The dealers figures are contained under the heading, “Sales as per dealers cards”, while the Marketing Manager’s figures are under the heading, “As per Marketing Manager’s TD1 Report”, both in the analysis table of paragraph 1 of the audit report. The claimant was a sales officer and worked under the Marketing Manager, the audit analysis showed clearly that the sales officer has nothing to do with the 1,145 excess TD1 cases as same was shown to have come from the Marketing Manager’s TD1 Report. The claimant who was a sales officer can never under any circumstance be held liable for the Marketing Manager’s alleged fraud. TD1 schedules prepared and signed by Mr. Akinduro not the claimant: The audit report held that it was observed that TD1 schedules between period 08 and 11 2010/2011 FY were prepare and signed by Mr. Akinduro and passed on for GM’s approval. Mr. Akinduro was the Sales Manager and boss to the claimant who was a sales officer. A copy of the TD1 incentive schedule pleaded before the Court clearly shows that Mr. Akinduro as the sales Manager and boss of the claimant could prepare the document. Mr. Akinduro prepared it and passed it on to the General Manager (GM), the highest authority in 7up Abuja plant and the GM approved it. The claimant can not be held liable for a document he did not prepare. If actually the procedure did not empower Mr. Akinduro to prepare those incentive schedules, the General Manager would not have approved them. Therefore, any question arising from those documents should be directed to Mr. Akinduro that prepare them and to the General Manager that approved them and not to the claimant. Query to the claimant (Exhibit PW7) Based on this audit report that lacks credibility (as it based on suspicion), a query dated 20th July, 2011 was issued the claimant. Allegation No. 1 in the query: You were involved in TD1racketeering in Suleja depot between period 06/2010/11 FY (Financial Year) and period 02, 2011/2012 FY on inflated TD1 schedules of 1,145 cases valued at N1,019,000.00. In his response captioned re-query and dated 22nd July, 2011 the claimant categorically stated that the allegation of fraud in Suleja depot did not involve him in any way, he therefore called for the production of the exact incentive schedule, that contain the alleged 1,145 cases, requesting also that they be properly crosschecked to prove that they were inflated figures. He further requested that the extent of his involvement be proven. The defendant never produced those documents as requested by the claimant let alone proving that they were fraudulent. In the case of OCHIN V EKPECHI (2000) 5 NWLR (PT. 656) 225 RATIO 2 AT P. 227 the court held:- Whereby defendant has not tendered the said relevant documents, he stands or fail with the averments and the court is entitled to invoke S. 149 d of the evidence act (cap 112) Laws of the Federation of Nigeria 1990 or Section 167 of the Evidence Act 2011 (as amended). That the court will presume; That evidence which could be and is not produced, would if produced, be unfavourable to the person who withhold it. See also OCHIN V EKPECHI (2000) 5 NWLR (PT. 656) 225 RATIO 2 AT P. 227 AND ONUWAJE V OGBEIDE (PT. 178) 14711991) 3 NWLR 147. Allegation No. 2 in the query: that you raised fake sale invoices to attract excess TD1 of 565 cases valued at N502,850.00. Again in his response, the claimant replied that his job as a Sales Officer never included raising sales invoices, he therefore submitted that at no time did he raise sales invoices let alone “fake ones”. He explained that the procedure was for his SAM’s (Salesman) that supply TD1’s to raise sales invoices at the point of supply and bring the sales invoices to him as the sales officer for the preparation of TD1 weekly and monthly reports. He then requested that since the allegation appeared like a statement of fact, the sales invoices allegedly raised by him should be produced. Once more, the defendant could not produce the alleged fake sales invoices as requested by the claimant. Non Availability/Non-Existence of Particulars of Alleged Fraud On page 11 of defendant’s statement of defence and counter-claim, the defendant held on to the alleged inflated TD1 incentive schedules and alleged fake sales invoices’ as its particulars of the alleged fraud. The defendant held thus on the said page 11. The defendant/counter-claimant company avers that the claimant/defendant to counter-claim with the aid of the defendant’s former marketing manager and the defendant company’s Suleja SAM (i.e. Salesman/Driver) within the period under review inflated the TDI incentive schedule by 1,145 cases valued at N1,019,000.00 as shown in the defendant company’s Internal Audit Report dated 20th July, 2011. The Defendant/Counter-claimant avers that claimant/defendant to counter-claim with the aid of the defendant’s former marketing manager and the defendant’s company’s Suleja SAM (i.e. salesman/driver) within the period under review, issued fake TDI sales invoices and therefore attracted excess TDI incentive cases of 565. However, when it was requested in court for the production of these documents, that is, the alleged inflated TDI Incentive schedules and alleged fake sales invoices, the Defendant could not produce even one to substantiate its allegation of fraud, therefore failing woefully to prove its allegation of fraud. Why will the Defendant not fail, after all the allegation of fraud against the Claimant was based on suspicion as held by the auditors in the audit report from which all these process emanated? No particular of fraud whatsoever was produced by the Defendant either before the Claimant when he called for them in his response to the query or before this Court. The Courts have had cause to address the effect of failing to file document along with pleading. See the case of MOBIL PRODUCING NIG. IJNLTD V. MONOKPO (2001) FWLR (PT.78) 1210. When a party fails to file pleading in a suit, he cannot adduce any evidence at the trial as there are no issues joined upon which he could adduce evidence. The case of the Defendant is so incurably bad that the only document it pleaded in Court is an audit report which is only a secondary document from the documents alleged to have been falsified or racketeered by the Claimant. Non Availability of Documents Auditors Claimed to Have Relied on to Raise Audit Report:- Audit report is the only document pleaded by the Defendant to prove its allegation of fraud. However, the audit report remains a secondary document and cannot be relied upon in establishing the veracity of the documents which constitute its source/primary documents which are as follows: a) Dealer/Allocation Cards. b) Marketing manager’s TDI Report which audit report explains that it led the alleged excess TDI cases of 1,145 and therefore was not inflated by Claimant. c) Alleged fake sales invoices raised by Claimant and Sam Akanya which audit report explains was based on suspicion. d) TDI scheduleof periods 08-11, 2010/11 financial Year (FY) prepared and signed by Mr. Akinduro and approved by the General Manager. e) Hajia Owolabi and Rosemary’s alleged unsigned Dealer Allocation Cards. The auditors claimed to have relied on the above documents as the Source/Primary documents of it’s audit report, however, these documents were not made available before this court. The audit report which is the document relied on by the Defendant during investigation and trial is just a secondary document. The necessary foundation of producing these exhibits was not laid before tendering the secondary document (audit report) see the case of CHIN WUBA V. MODUPE ALADE (1991) 6 NWLR 85, CA. in MOBIL V CHIEF MONOKPO (2003) NSCQR VOL 16, NIKI TOBI, JSC ON PAGE 532 -533, held. A Court trial or Appellate, must see the exhibits before taking any decision on them. A court trial or Appellate, must see the exhibit before probing into their veracity or authenticity. A court trial or Appellate, must not come to the conclusion, one way or the other, on Exhibits which it did not see. Where a Court does that, there is a clear miscarriage of justice and the judgment must be declared a nullity. Alleged Fraud in Audit Report Based on Suspicion: In paragraph 2 of audit report, the auditor alleged that “Fake sales invoices “were raised to attract excess TDI of 565 cases valued at N502,850.00. The auditors explained the alleged excess 565 cases this way: We observed instances where the sales invoices raised by SAM Akanya and £0. Donald could not be traced to the dealers Cards. Two dealers cards in Lambatta Village in Niger State were reviewed out of the few cards collected during our visit to the dealers and it was discovered that some sales invoices were raisea’ which were not traceable to the dealers cards. This resulted to excess TDI of 565 cases on just two customers. We suspected that the converted sales of 7,457 cases were actually cash sales but were fraudulently converted to TDI sales by raising fake sales invoices to back it up. Further down to paragraph (5) iii, the audit report alleged that, “it was also discovered that the cards of Hajia Owolabi and Rosemary were not signed by the sale officer — Donald at all for 5 periods as against his normal practice Of signing the dealers cards whenever he visited them”. On this same Hajia Owolabi and Rosemary’s cards at the beginning of paragraph 5, the audit report had already held on to SUSPICION. The report said “While reviewing the dealers cards for Hajia Owolabi and Rocemary. We suspected that all the entries in these cards were hurriedly made in one day by SAM AKANYA. Our suspicion is based on the following reasons”. Again, the last sentence of paragraph 5 still laid credence to suspicion as it declared, “we suspect that all the sales entries on the two cards were made to agree with the earlier fake invoices raised”. Audit Report must be Factual and not Suspicion Based. Being an object Of suspicion therefore, the allegation of fraud existed only in the imagination of the auditors and never actually took place. It is trite laws that suspicion no matter how strong cannot ground conviction. See the case of BENSON OBIAKOR & ANOR V THE STATE (2002) 10 NSCQR 927 AT 941 PER U.A. KALGO, J.SC; ADAMU V THE STATE (1986) 3 NWLR (PT.32) 865 RATIO 9; AND ABIEKE V. STATE (1975) 9 SC 97 AT 104 where the Court held that; There is no doubt in my mind therefore that the above findings of the learned trial judge and supported by the Court of Appeal were based on mere suspicion, speculation and conjecture. And it is well settled that suspicion however strong cannot constitute a crime or ground a conviction. See also BABALOLA V. THE STATE (1985) 4 NWLR (PT.115) 264; BOZIN V. STATE (1985)2 NWLR (PT.8) 465; ADAMU V. THE STATE (1986) 3 NWLR (PT.32) 865 RATIO 9; The team of investigators that was set up by the Defendant, acted on the flawed and baseless audit report, that is based on “mere suspicion, speculation and conjecture” and which existed only in the imagination of the Defendant. It was a case of a dog being given a bad name to hang it. Contradiction: Contradiction in the Testimony of Defence Witnesses Defendants Witnesses: During cross-examination, the two witnesses of the Defendant made contradictory statements:- (a) On the issue that only Salesmen are authorized to raise sale invoices and not the sale officer, Mr. Garba Danjuma answered that both Salesmen (SAM’S), Sales Officers and Sales Manager raise sales invoices. When the same issue was raised to the second witness, Mr. All Kamal, (the auditor), he said that it is only the Salesmen (SAMs) that raise sales invoices. (b) When asked for the production of the alleged inflated TDI schedules, alleged fake sales invoices, Dealer Allocation Cards and other alleged documents before the Court, Mr. Danjuma said that they could not produce them before the Court because according to him, they had shown them to the Claimant. On the same issue, Mr. Ali Kamal (the auditor), said that the documents are 7up properties with 7up dealers and therefore cannot be produced before the Court. On grounds of these contradictions from the Defendant’s witnesses, their testimonies cannot be relied upon by the Court because the contradictions are clear indication that the witnesses lied under Oath. In law, a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts. Contradictions between two pieces of evidence goes to the essentiality of something being or not being at the same time. The Court in the case of IBIYEYE, JCA IN AKANNI V. ODEJIDE (2004) ALL FWLR (PT.218) 822 AT P.854-855 PARA. G-4 held; The contradictory evidence of the Plaintiffs witnesses should have been enough for the trial Court to view it with suspicion and disbelief. See also AKANMU V. ADIGUN (1993) 7 NWLR (PT.304) 218 at 235. The contradictions are material and very germane to the fears of victimization by the Claimant and the possibility of issues being compromised against the Claimant. The contradictory statement of the defence witnesses was a pointer to the fact that there would have been an orchestrated design to frame up the Claimant as one solely responsible for raising invoices while he was not. See EBEINWE V. STATE (2011) VOL.45 (PT.11) P.1206 at 1218 PER A. M. MUIKTAR, JSC where the Court held; It would cause or occasion miscarriage of justice. On the Duty Imposed on an Employer Who Gives Reasons for Terminating the Appointment of an Employee: The principle which has been articulated and applied in many cases like in OLATUNBOSUN V. NISER COUNCIL (1988)1 NSCC 1025; 1988 3 NWLR (PT.80) 25 and SHELL PETROLEUM DEV. CO. V. SUNDAY OLAREWAJU (2008) NSCQR VOL.36 (PT.11) P.1187 PTLY 1207 PER TABAI, JSC is that:- An Employer is not bound to give reasons for terminating the appointment of his employee. But where, as in this case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reasons to the satisfaction of the Court. V In this case, the Appellant, having given gross misconduct to warrant guilty of the alleged misconduct to warrant his dismissal. And in a case such as this, the Court must be watchful to ensure that in the investigation or proceeding of the domestic panel culminating in the employee’s dismissal, the rules of natural justice were not breached. Proof of breach of the Rules of Natural Justice. In the case of S. P.D.C V. SUNDAY OLAREWAJU (Supra), the findings of the learned trial judge F. F TABAI JSC AT PG. 1212, about the breach of the Rules of Natural justice cannot be faulted where he said; In cases of this nature the employee who was dismissed or otherwise punished for gross misconduct need not prove that the proceedings of the domestic panel that investigated were prejudicial to him it is sufficient that it might. The risk of any prejudice is enough. F.F. TABAI, JSC atpg.1212. It was not out of place to set up the investigative team; neither ‘was the Claimant opposed to it. But it is the expectation of Natural justice as enshrined in S.36(2) a of the 1999 Constitution (as amended) and for an investigative team involved in a review of administrative action to comply Order with Order 167 of the Evidence Act 2011 (as amended) Act in good faith, honesty and by honest means arrive at a fair decision. See case of AKINYEMI & 2 ORS V. PROF. ONWUMEHCILI & ANOR (1981) OY SHC 477. In the present case, the defendant having given involvement in fraudulent activities (TDI racketeering) and deviation from standard mode of operation of the company at Suleja Depot as it’s reasons for the query (Exhibit Pw.6), first and second suspension letters and the termination letter, has the onus to establish that the claimant was indeed guilty of the alleged misconduct to warrant his termination. The Court in the case of SHELL PET DEV. CO. LTD (Supra) went further to recommend that; That the Court must be watchful, to ensure that in the investigation or proceedings of the domestic panel culminating in the employee’s dismissal, the rules of natural justice were not breached. It is our strong view that the Claimant should have been taken further than it (Defendant) did, apart from mere representation made through Exhibit P.W7. None of the documents mentioned by the audit team was seen by Claimant and it is most likely the “investigating team” would not have been availed the document by Defendant, as there was none on record, but a suspicious contraption that merely existed in the imagination of the defendant. In line with the case of OLATUNBOSUN V. NISER (1988) 3 NWLR (PT.80) 20 AT 32, the Appellant pleaded NON EST FACTUM and the court held in his favour. In the present case, the Claimant disputed the findings of the audit team and held that the acts were “Not His Deed”. The Defendant for reasons known to her refused to wade into the merit of the rebuttal of allegation of involvement in financial fraud or Racketeering of Trade Discount Incentives (TDI) and the “supposedly” deviation from standard mode of operation of the company which was stricto senso based on mere suspicion, but went ahead to fire the Claimant. Thus, for the Defendant to prove that it availed the Claimant fair hearing, the Defendant should have at least proved before the Court that the documents, evidencing the discrepancies between the Claimant and Defendant existed in the first place. But this was not to be. None was frontloaded throughout its pleading and during trial, that truly, they contained fraudulent figures attributable to the Claimant. The Court has held in a plethora of cases on the need for frontloading. See MOBIL V. CHIEF MONIKPO (2003) Supra; ORDER 3 RULE 4 OF THE NATIONAL INDUSTRIAL COURT RULES. Admission of An Inadmissible Evidence The Defendant pleaded and tendered different “audit report on trade discount incentive (TDI) Racketeering at Suleja Depot of Abuja Region” which is not the legally relevant source/primary documents evidencing the fraudulent practices simply put, the Court should not have admitted it in evidence in the first place. The position of the law is that a Court must admit and act on admissible evidence. In the case of OWENA BANK (NIG) PLC V. PUNJAB NATIONAL (2000) 5 NWLR (PT.658) 653 RATIO 4, the Court held that; Where an inadmissible evidence is tendered the Court may in civil cases reject such evidence even if a party fails to object to the admissibility of such evidence. See also RAMI V. AKINTOYE (1986) 3 NWLR (PT. 26) 97. The Court cannot act on legally inadmissible evidence admitted by consent of parties contrary to S. 34(1) E.A, 1990 or S. 46 (2011) (as amended). If consent is given to admit evidence which is contrary to the provisions of statute (e.g. S.46 of the Evidence Act). The Court must ignore it. See MENAKAYA V. MENAKAYA (2001) 16 NWLR (PT. 738) 203 AT 236 AND 263 PER UTHMAN MOHAMMED, J.S.C IN EGHOBAMIEN V. FED. MORT BANK (2002) NSCQR VOL.11 PAGE 185. What the Defendant succeeded in doing was merely to spring surprise on the Claimant contrary to Order 3 Rule 4 of the National Industrial Court Rules. Equally important is that the so called documents that was pleaded prior to commencement of trial was the Trade Discount incentive (TDI) Racketeering Audit Report authored by Fadare O. the internal audit Manager “without his signature”, while the other copy that was tendered in evidence during trial was the one authored by Au Kamal head of audit team of the Defendant. In effect the two documents were authored by different people with the later one signed, and the first one not signed. See MANDILAS LTD V. AYANRU (2000) FWLR (PT.7) 1129 RATIO 1; EDILCO NIG. LTD V. U.B.A. PLC (2000) FWLR(PT.21) 792 RATIO 3 where the Court held that:- It is trite that an unsigned document would not be conferred with any evidential value. Furthermore, it is not within the competence of parties to a case to admit by consent or otherwise a document which by law is inadmissible. See LAWSON V. AFANI CONT. CO. LTD (2002) 2 NWLR (PT.752) 585 RATIO 7 AND YERO V. U.B.N (2000) 5 NWLR (PT.657) 470. In summary we urge the Court to resolve Issue No,1 in favour of the Claimant and declare that the termination of the employment of the Claimant is wrongful and unlawful and thus should be entitled his reliefs as prayed. Issue Two:- Whether the Defendant has successfully proved, its Counter-claim to avail it of the relief sought for from this Court. During trial, certain important issues arose thus lending credence to the fact that the Defendant has not been able to discharge the onus of proof required in a criminal allegation. Under Cross-Examination of Claimant: Counsel to Defendant asked Claimant, “the reason for the termination of your appointment was because of fraud?”. Claimant answered, “alleged fraud”. The counter-claim shows clearly that the Suit is purely based on alleged fraud that has not been proved beyond reasonable doubt. In a nutshell, the question whether the Defendant has successfully proved its Counter-claim to avail it of the relief sought for from this Court which is based on fraudulent allegation. The answer is in the Negative. The Defendant has not successfully proved its case to be entitled judgment in its favour. Claimant was not only accused of willful neglect of duty “by deviating from the standard mode of operation” of the Defendant company but with involvement in fraudulent activities and Racketeering of Trade Discount incentives (TDI) to the excess of 1710 cases valued at a total sum of N1,52 1,850 within the company’s accounting periods (PD) 01, 02, 04, 06, 08, 09, 10, 11, 12 in the 2010/2011 financial year. The Defendant have alluded and claimed in their counter-claim that it suffered these financial loss as a result of the willful neglect of duty by the Claimant and thus should pay for same. See paragraph 16 of statement of defence and paragraph 11 of counter-claim. To the counsel this is an allegation of crime that need to be satisfactorily proved based on verifiable evidence. On how accusations of crime can be proved before an employer can rely on it to dismiss an employee, the Court, in the case of IMONIKHE V. UNITY BANK PLC (2011) LRCN VOL. 202 PG. 92 EE JI, held that; Accusation of crime must be proved beyond reasonable doubt in a Court of competent jurisdiction before an employer can rely on an accusation of crime to dismiss an employee. That this counter-claim was not proved by the Defendant and thus cannot be granted against the Claimant. Secondly, the Defendant offered no evidence in support of his pleadings. What the Defendant pleaded was the findings of the audit team (which was based on. suspicion) without the necessary foundation or the source documents alleged from. The Court in a plethora of cases have commented on the effect where the Defendant offers no evidence in support of his pleadings where it said that, Where a Defendant offers no evidence in support of his pleadings, the fact before the trial Court obviously goes one way with no other set of facts or evidence weighing against it. There is nothing in such a situation, to put on the other side of the proverbial or imaginary scale of balance as against the evidence given by or on behalf of the Plaintiff The onus of proof in such a case is naturally discharged on a minimal proof. See also the case of THE ADMINISTRATORS / EXECUTORS OF THEESTATE OF GEN. SANNI ABACHA (DECEASED) V. SAMUEL DAVID EKE - SPIFF (2009) 37 NSLQR 364 PER 1 F OGBUAGU, JSC, PG.417 RATIO 22; OKOEBOR V. POLICE CORP. & 2ORS (2003) 5 SCNJ P.52 AT 66; CHIEF DUROSARO V.AYORINDE (2005) 3 SCNJ8 AT 23. Counsel submitted it is trite law, that where pleadings are not supported by evidence, such pleadings are deemed to have been abandoned. See CAREW V. OGUNTOKUN (2011) 45 NSCQR 125 RATIO 7 AT PG. 1284 where the court held that; It is a cardinal principle of law, that any process that is filed in Court and which the party who has filed, and has not deemed it necessary to pursue it, either by taking further steps or doing certain things like moving the Court, in compliance with requirements of the law, the Court will be correct to assume that the process has been abandoned. See also SALAM V. MOHAMMED (2000) 9 NWLR (PT. 673) PG. 469; TIZA V BEGHA (2005) 15 NWLR (PT. 949) P.6 16 AND ONWUBUARIRI V IGBOASOIYI (2011) VOL. 45 (PT.11) PG. 1007 where the distinguished learned justice of the Supreme Court, W. S. N. ONNOGHEN, JSC ON PG.1025. held; It is clear that the non-tendering of the said documents would have been deemed abandoned and the trial Court could not have made any finding relating thereto; as to do so, would have amounted to the Court speculating on evidence not before it, Which act is frowned upon by law. Since the pleading in question was abandoned, it means in law, no issue was joined between the parties for consideration by the trial Court. See also OBA OYEDIRAN OF IGBONLA V. OBA ALEBIOSU 11(1992) 6 NWLR (PT.249) 550 AT 556 AND A.C.N.V LAMIDO (2012) NSCQR VOL. 49 PG.652. The counter-claim of the Defendant shows clearly that what activated the termination was purely, the allegation of financial loss it suffered as a result of the “unsubstantiated” fraudulent practices (Trade Discount Incentive Racketeering) linked to the Claimant and two others. This reasons as fanciful as it is, at all times material wears criminal coloration that have to be proved beyond reasonable doubt. This the Defendant has failed to do. In the case of NWAFORNSO V TAIBU (1992) 1 NWLR (PT.219) 619. The Court held that; Fraud and mis-presentation are criminal or quasi-criminal -offences. if these are alleged in a civil case, the standard of proving them must be beyond reasonable doubt and not on balance of probability. Thus, he urged the Court to discountenance the prayers or reliefs of the Defendant as contained in their counter-claim, as it is the mind of the law that pleaded documents must be strictly and legally front loaded and proved for they to be granted audience by the Court. CONCLUSION Consequently, he prayed the Court to rule in favour of the Claimant and make the declaration that his termination was wrongful and unlawful and this should be entitled to relief as prayed. Having carefully considered the processes and the documentary and oral evidence proffered by parties, and the submissions of the parties, the issues for the court to determine are as follows:- 1. Whether from the state of pleadings and evidence led din support of same, the claimant has discharged the burden of prove placed on him and thereby entitled to the reliefs sought. 2. Whether the defendant is entitled to the counter – claim. In this suit the claimant claims 5 reliefs against the defendant counter claimant. It is trite that the burden of prove in civil cases is placed on the party who asserts. Therefore by provision of Section 131(1) of the evidence Act, whoever, desires any court to give Judgment as to any legal right or liability dependent on the exercise of facts which he asserts must prove that this facts exist. The claimant first relief is for a declaration that the termination of his appointment on the 23rd August, is wrongfully and unlawful. When an employee complains that his employment has be wrongfully terminated, the onus is on him to prove the wrong doing by placing before the court the terms and conditions of the contract of employment and proving in what manner the said terms were breached by the employer. This is because the terms of contract are the bedrock of an organization case where the issue of wrongful termination of employment calls for determination. The claimant conceded to the fact that a master can fire his servant without reason. But that the allegation of fraud levied against him for deviation from the standard mode of operation which he refuted in the query Exhibit PW7 were NOT HIS DEED. That the defendant failed to show the standard mode of operation of the defendant and the alleged fraudulent activities by him. The claimant further argued that the reason for the termination of the claimant’s appointment is the alleged fraud and for this he has been unfairly treated. While the position of the defendant is that the claimant’s employment falls into master and servant employment relationship. The defendant further contended that the claimant’s reliefs are declarative and that he has not by any way proved the reliefs sought by the declaration. The defendant argued the letter of termination merely stated that the services of the claimant were no longer required by the company and therefore his appointment with the company is terminated with immediate effect. That no reason was given for the claimant’s termination and the letter is self explanatory. The defendant contended further that even if the termination was wrongful the claimant is only entitled to a month’s salary in lieu of notice. The defendant also added that in a mere master and servant relationship, an employer can discountenance the services of any of his employee for good or bad reason or for no reason at all. This the claimant also has conceded to. In this case the basic issue that calls for resolution is whether the defendant complied with its terms and conditions of service, binding the parties. The burden is on the claimant to establish through credible evidence that the termination of his employment was indeed wrongful. This burden can only be discharged by the claimant proving that the conditions under which his appointment was terminated are completely at variance with the terms and conditions agreed by the parties. The employment relationship between the claimant and the respondent is governed by the offer of appointment of the claimant as graduate trainee Exhibit PW1 and the claimant’s confirmation of appointment Exhibit PW5. The claimant’s letter of offer of appointment dated 13th December, 2007 on the 2nd page of same letter under termination of appointment provides that after confirmation of appointment the notice to be given is one month or payment in lieu by either party. In the suit the claimant has failed to prove the terms and conditions of his employment that were violated by the defendant in the termination of his appointment, this fatal to his case. The defendant decided to exercise its right to determine the contract of employment as provided for and in compliance with the claimant’s letter of offer of employment by giving the claimant one month’s salary in lieu of notice. The letter of termination of appointment dated 3rd August, 2011 provides thus:- The letter of termination in the instance case simply stated: We regret to advise that your services are no longer required with the Company. You are therefore terminated from the services of the Company with immediate effect. Meanwhile you will be paid your salary up to and including 29th August, 2011 together with one (1) month salary in lieu of notice less any indebtedness to the company. This shows that the letter of termination was carried out in strict compliance with the letter of offer of appointment and no where was any issue of fraud mention. The law is that the court would not forge a marriage of convince in master and servant relationship where a master decides to terminate the relationship and there is no reason for it, the master is under no obligation to justice the reason. SPDC V Olarewaju (2011) 22 NLLR (Pt. 61) 1 at 20. This issue is therefore resolved in favour of the defendant as it is the defendant has the power to terminate the claimant’s appointment and having done this in line with the terms of contract of employment, and the claimant has not proved that they breached the terms of the contract of employment. The claimant’s second relief is for the sum of N50,000,000.00 (Fifty Million Naira) Only being damages for wrongful and unlawful termination of appointment of the claimant. On the issue of damages, where the terms of the contract has been breached that would be wrongful termination as the parties to employment contract are bound by the terms of the court. The remedy of wrongful termination lies in a claim for damages. The quantum of damages is the amount the employee would have earned until the valid determination of the employment. It is a settled law that general damages are those damages which implies every breach and every violation of a legal right. It is a loss that flows naturally from the defendant act for the court to award damages it must be in the light of evidence before the court. In this case the claimant has not proved that the term of his contract of employment was breached by the defendant. He dwelt more on the fraud that took place in the Suleja Depot regarding TD1 Sales which he laid at the door step of his superior. The claim of N50,000,000.00 as damages for wrongful and unlawful termination of appointment cannot be granted in that the demand is not in consonance with the principle on which damages for wrongful dismissal or termination is assessed. See the case of Nigeria Marketing Board V A. O. Adewunmi (1972) 11 SC at 117 where the held:- In a claim for wrongful dismissal/termination the measure of damages is prima facia, the amount the Plaintiff could have earned had the employment continued according to the contract. Flowing from above, it is my view that the court cannot make such an award. The Third relief of the claimant is for the sum of N40,000,000.00 (Forty Million Naira) Only being damages for defamation of the claimant’s character. On this issue the claimant has not told the court or led evidence to show how his character has been defamed. It is not every case that employee must be arranged before a court before disciplinary action can be taken against him. Once the offence committed by the employee is within the domestic jurisdiction of the employer, disciplinary action in such a case can be taken without recourse to a criminal charge. The facts leading to the action of the claimant are as follows, during the audit routine visit to claimant’s dealers at Suleja Depot, between 27th June to 1st July, 2011. The audit Team Report revealed that (TD1) Trade Dealer Incentives Sales Promotion bonuses were racketeered by the claimant with the aid of the defendant’s former Marketing Manager. Also that the defendant Company’s SAM (i.e. Salesman/Driver) at the Suleja Depot revealed that the claimant was falsely allocating Regular Cash Sales made to ordinary customer in the ordinary course of the defendant’s business to TD1’s dealers sales to enable them falsely attain the defendant company’s TD1’s targets and thus claiming extra cases as incentives when they were not genuinely TD1 Sales and this were not entitled to TD1 bonuses. That as a result of this racketeering within the period there was excess TD1 incentives cases of 565 valued at N502,850.00 is a result of issuing of fake TD1 Sales invoiced. According to the defendant the claimant did not prepare TD1 Sales Register within the time under review and the claimant did not follow the Company’s laid down mode of operation. The claimant and other affected employees were suspended and after further investigation the defendant found the claimant and other affected staff complicit. The defendant thereafter terminated the claimant’s employment and also paid him all his benefits including a month’s salary in lieu of notice. Aggrieved by this action of the defendant the claimant instituted this action claiming 5 reliefs. It is trite that the employer is entitled to discipline its erring staff the claimant inclusive when the need for same arises. See IMONIKHE V UNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 AT 649 PARA C held thus:- By the conditions of service of any organization properly so called an employer ought to be able to discipline erring employees and that was precisely what the Respondent did. The employer is also vested with powers to set up panels to conduct disciplinary proceedings against erring employees. In RAJI V UNILORIN (2007) 15 NWLR (PT. 1057) 259 AT 277, PARA D, the Court of Appeal, per Ogunwumiji, JCA stated as follows:- It only stands to reason that where an allegation of misconduct has been made against an employee, the employer is entitled to set up a panel to investigate the allegation or in this case to refer the allegation to a committee established for such purpose. The claimant on this relief as not proffered any evidence as to how his reputation was damage by the defendant. As stated above, it is a fact that there was a fraud perpetrated at the Suleja Depot which led to the removal of some officers of the defendant. The letter of termination issued to the claimant is clear and unambiguous and any insinuation made by the claimant cannot be added to the letter. As earlier said the defendant is empowered to hire and fire and carryout investigation on any matter affecting his organization. This issue is also resolved in favour of the defendant. The claimant’s fourth relief is for the sum of N5,000,000.00 (Five Million Naira) Only being damages for breach of the claimant’s constitutional right to fair hearing. Fair hearing is a constitutional guaranteed right under Section 36 of the 1999 Constitution as amended and the tenets of fair hearing was aptly considered in the case of Garba V University of Maiduguri. Fair hearing implies that:- a. A person knows that the allegation against him are b. What evidence has been given in support of such allegations c. What statements have been made concerning those allegations. d. Such person had a fair opportunity to correct and contradict such evidence. e. The body investigating the charge against such person must not receive evidence behind his back. It is on record that the claimant was issued a query Exhibit PW6 which he responded to Exhibit PW7 where in he refuted according to him the allegation and maintained that the allegations were NOT HIS DEED. It is also on record that the claimant met with top management officials of the company on two occasions. Going by the decision of the Supreme Court in the case of B. A. Imonikhe V Unity Bank Plc where the court held thus:- Where an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query and the employee answers the query before the employer takes a decision on the employment of the employee, that satisfied the requirements of fair hearing because he answered the respondents queries before he was dismissed from his employment. The adherence to the principles of fair hearing is of general applications and binding on administrative or investigation panel. In the instance case the claimant was confronted with the allegations of the TD1’s racketeering before his employment was terminated. He cannot complain of lack of fair hearing. The requirement of fair hearing is satisfied by an opportunity given to the employee to make representation whether oral or written. It is therefore, clear that there is no question as to the facts that the claimant was not given adequate notice of the allegations against him and opportunity to make representations in his defence and in my view there is therefore no basis for his complaint of not given fair hearing. See the case of Momoh V CBN (2007) NWLR (Pt. 1055) 504 at 526 para D; the court of Appeal per Aboki JCA held as follows:- Where an employer dismiss or terminates the appointment of an employee on ground of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee that he was given a fair hearing, that is to say that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, and accepted that he committed the act after investigation. The issue is also resolved in favour of the defendant as there is evidence that the claimant was confronted with the missing cases of the missing drinks and was given opportunity to react. Another claimant’s relief is for the sum N1,500,000.00 (One Million Five Hundred Thousand Naira) Only as the cost of this suit. He has not led any evidence on this and how he came about the figure and the court makes no award. The next issue for the court to determine is the defendant’s counter-claim of N1,521,850.00 (One Million Five Hundred and Twenty-one Thousand Eight Hundred and Fifty Naira) Only against the claimant being the amount for the loss of 1,145 cases of the defendant’s product. A counter-claim is in itself an action distinct and separate from the main claim of the claimant. It is by its nature a cross action by the defendant and a defendant is respect to its claim in the counter-claim is the claimant and main claimant the defendant to the action in the counter-claim. The claim made therein must be supported by its evidence. There is no dispute as to the fact that an audit report revealed that there was TDI racketeering at the Suleja Depot of the defendants. The claimant denied ever being involved in any fraudulent act particularly the TDI incentives racketeering and placed the whole blame on the Marketing Manager. He claimed he never signed any dealer allocation cards. He submitted further the General Manager Mr. Nelson Olademeji had approved those incentives schedules which he knew were not prepared by him. The defendant counter-claimant is making this claim against the claimant contending that it was the duty of the claimant/defendant to prepare the TDI Sales Schedule whilst same, was expected to be sent to the Marketing Manager who would then recommend the TDI Schedule to the defendant’s General Manager for approval. The counter-claimant submitted that the claimant had no right whatsoever, to deviate from the above mode of operations of the defendant company. That the Audit report reveal that TDI Sales were racketeered by the claimant/defendant with the aid of the former Marketing Manager and the defendant’s company’s SAM that is (Salesman/Driver) at the Suleja Depot. That as a result of the racketeering there was a loss of 1,145 cases valued at N1,521,850.00 to the company. According to the defendant counter-claimant the TDI Incentives racketeering was carried out by the claimant/respondent with the aid of the former Marketing Manager and the defendant’s SAM. Since this racketeering according to the defendant counter-claimant was carried out by those mentioned above, it would be unjust to request that the claimant alone be made to pay for the loss of N1,145 cases valued at N1,521,850.00, as the alleged lost incurred by the defendants. If there is going to be any refund it must be paid by all those involved by the racketeering. It is therefore, my view that the counter-claim lack merit and is hereby dismissed. For the reasons given above, the claimant claims lack merit and is hereby dismissed, and the counter-claim also fails. Judgment is entered accordingly. ________________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE