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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 19TH MARCH, 2015 Suit No. NICN/ABJ/247/2012 BETWEEN BAR. (MRS.) RAMATU UMAR BAKO CLAIMANT AND 1. BRITISH COUNCIL NIGERIA DEFEDNANTS 2. BEN FISHER REPRESENTATION Josiah Daniel – Ebune (Esq.) with Emmanuel Agedo Esq, Victoria Egbudagbe Esq, Beatrice Achike Esq, C. N. Ahidiumo Esq, and Abimbola Olowosago Esq for the claimant. Patrick osu (Esq.) with Kayode Omosehin Esq for the defendants. JUDGMENT By the amended complaint and statement of claims dated and filed on 12th October 2012, the claimant claims against the defendants jointly and severally as follows:- 1. A Declaration that the purported dismissal of the claimant for the stated reasons of “spreading malicious rumors about a colleague and poor performance” by the defendant is not in accordance with the procedure laid down in the terms and conditions (TACOS) of the claimant’s employment and is therefore illegal, unlawful, irregular, unconstitutional, null and void and of no effect whatsoever. 2. AN ORDER re-instating the claimant to her office as the public Diplomacy Portfolio Manager forthwith 3. AN ORDER compelling the defendants to pay all outstanding salaries and allowances due to the claimant from the first day of July 2010 to the date the judgment and thereafter 13% interest therein per annum until the payment is effected. 4. The cost of this suit as shall be assessed by at the end of the trial. ALTERNATIVELY 1. A Declaration that under the constitution of the Federal Republic of Nigeria 1999(as amended ) and the Labour Act, 2004 and the Terms and Conditions of Employment (TACOS), the claimant is entitled to fair hearing and to be free from all manner of discrimination in her place of work. 2. GENERAL AND SPECIAL DAMAGES of ₦303,233,145 (three hundred and three million, two hundred and thirty-three thousand, one hundred and forty-five naira for unlawful dismissal and outstanding salaries and allowances due to the claimant from the defendants from the first day of July, 2010 as contained in the letter of upward Review of salary dated 28/8/2009 to the date of judgment and thereafter 13% interest rate per annum on the judgment sum until the payment is effected. PARTICULARS OF SPECIAL DAMAGES i. The sum of ₦132,891.15 (One hundred and thirty two thousand, eight hundred and ninety-one Naira, fifteen kobo). On the basis of the claimant’s last salary increment as stated in the defendant’s letter of salary review dated 28th August 2009 being the sum of ₦3,185,611.89 (Three million, one hundred and eighty five thousand, six hundred and eleven naira and eighty nine kobo) multiplied by thirty-five years from the 1st day of July 2010 till the first day of July 2045(being thirty-five years when the claimant could have lawfully retired and/or disengaged from the employment of the first defendant. ii. END OF SERVICE PAYMENT IN LIEU OF PENSION, Calculated at the rate of one month’s salary per year, that is the sum of ₦4,233,145.00 (four million, two hundred and thirty three thousand and one hundred and forty-five naira only. iii. ₦200,000,000.00 (Two-hundred million naira) only being damages for libel occasioned the claimant by the defendant and its servants, agents and privies in the course of occasioning the breach of contract of employment between the parties. iv. 13% interest rate on relief 3 per annum until the judgment debt is liquidated. v. Perpetual injunction restraining the defendants, whether by servants, privies, agents, whomsoever however defined themselves from further publishing defamatory words of and concerning the person of the claimant. vi. A letter of apology to the claimant by the defendant to be published in the Economist Magazine, The Times of London, Newswatch, and the Guardian newspaper with prominent headlines retracting falsehood contained in the letters of warning and dismissal in this case. In reaction to the claimant’s complaint the defendant filed an appearance and filed an amended statement of defense dated 15th January 2013. The matter went into trial, the claimant testified in her case and she tendered exhibits. The defendant also called only one witness, who testified for the defendant in the person of Amir Ramzan (The Deputy Director) The parties adopted their final written addresses on 16th of December, 2014 The defendants in their joint final written address formulated three issues of determination to wit… 1. Whether in the circumstances of this case, the termination of the claimant’s employment by the defendant was in compliance with the claimant’s employment contract? 2. Whether in the circumstance of this case and considering the evidence led before this honourable court, the defendant published defamatory statement concerning the claimant? 3. Whether in the circumstance of the case and considering the evidence led before this Honourable court, the claimant is entitled to the reliefs sought? In his argument on the first issue which is whether in the circumstances of this case, the termination of the claimant’s employment by the defendant was in compliance with the claimant’s employment. The learned counsel to the defendant commenced stating that the terms of the claimant’s employment contract are binding on both parties in the determination of this suit. Counsel referred to the case of OSIYEMI V SOCIETE GENERAL BANK LTD (2001) 11 NWLR (PT 725) 563 an employee who has a grouse as to the way and manner his employer put an end or that his employment has been wrongfully terminated has the duty 1. To put before the court the terms of the contract of his employment and 2. To prove in what manner the said term were breached by the employer. The learned counsel submitted further that it is trite, and the case of an employee stands or falls by the terms of their contract of service being what is binding on both of them and it is to that document, which is the contract of service that a court of law must cast its searchlight and to nothing else. Relying on this case of Iwuchukwu V Nwrzu (1994) 7 NLWR (pt 357) 379 and Amodu V Amode (1990) 5 NWLR (pt150) 356. The learned counsel said that the claimant’s employment was governed by her letter of employment dated 19th November 2007 and a number of internal regulations in force. That is the terms and conditions of service for the country appointed staff as amended (TACOS), code of conduct, Grievances-Employee Relations and Essential (HR.) That the various internal rules form part of the claimant’s contract of employment and binding on her. The counsel cited the case of Bade V. N.C.A.T.C (1991) 5 NWLR (pt 192) 38 to buttress this position. The learned counsel then submitted that under the various internal rules of the first defendant, the act of poor performance of the claimant in respect to the KANO EVENT which led to the loss of reputation of the first defendant indeed the email of 16th March 2010 sent out by the claimant as grounds for being penalized in accordance with the standard disciplinary procedure which may lead ultimately to termination of her employment. The learned counsel contended that the first defendant did not grant the claimant a life time employment notwithstanding that her employment was indefinite by the mere use of the phrase “continued Indefinite Term Employment in her letter of employment. That paragraph of the said letter of employment provides that the council may terminate the employment by giving one month notice in writing; the council may also at its discretion pay the employee a month’s salary in lieu of notice. In the same paragraph the British Council may dismiss an employee at any time for gross misconduct. That the disciplinary procedure and other grievance procedure are as set out in the TACOS The learned counsel submitted that the claimant committed a gross misconduct contrary to the provisions of TACOS by sending out the email of 16th March 2010, which was critical of the second defendant which was circulated to persons who according to the defendants need not to know about its content. Continuing, the learned counsel submitted that clause 7.3 of TACOS, defined gross misconduct as a behaviour which is so serious e.g. theft, or assault, as to warrant summary dismissal. The counsel contended that the claimant’s e-mail of 16th March 2010 containing serious allegations of racial discrimination against the second defendant and circulated to a wide range of the first defendant’s staff who ought not to have received it was inconsistent with the goals of the first defendant and an unacceptable behaviour. That is a breach of the code of conduct of the first defendant. The counsel also added that the grievance complaint of the second defendant that he had been harassed by the claimant was upheld by an Independent Panel of Investigation and found that the claimant had no evidence to substantiate the various allegations of racial discrimination and segregation as contained in her email of 16th March 2010. The counsel also argued that there are lists of certain unacceptable behaviour stated in the essential HR which the claimant breached in the course of her employment. The defendants also submitted that the claimant’s job description was to contribute to the achievement of the first defendant’s objectives through the planning management, delivery and evaluation of country, regional and global products and services. That the job description also required proper behaviour, decorum, diplomacy and professionalism which qualities must be displayed at all times with other colleagues as contained in the contract of the first defendant. That the conduct of the claimant from time to time did not meet these expectations as provided by evidence led at the trial of this suit. The defendant also submitted that the claimant’s alleged her dismissal was malicious but that she did not lead any evidence of malice by the first defendant and that the failure to adduce evidence of malice means that she had abandoned that part of her pleadings. They went further to ask whether the procedure adopted by the 1st defendant in dismissing the claimant conform with the agreed procedure. In answering the question the first defendant submitted that it is on record that the claimant had unsatisfactory performance and has been cited for misconduct for which he was issued first written warning dated 6th November 2009 in accordance with the provisions of TACOS. To the defendant the testimony was not challenged by the claimant’s counsel during the cross-examination of DWI. That the claimant denied that she was never issued any first warning for poor performance and spreading malicious rumours about Ben Fisher On this issue the 1st defendant submitted and concluded that the claimant is estopped from denying the content of the warning. It is the submission of the 1st defendant that the claimant committed a gross misconduct and therefore breached the code of conduct of her employment when she sent the email of 16th March, 2010 which was critical of the 2nd defendant and widely calculated to the 1st defendant’s employees most of whom did not need to know it and thus entitling the 1st defendant to dismiss her summarily. The 1st defendant urged the court to accept the evidence of the DW under cross examination that the disciplinary procedure which ought to follow the report of investigation held on 10th March, 2010 of the claimant’s poor performance in the Kano event was overtaken by the claimant’s subsequent act of gross misconduct which entitled the 1st defendant to dismiss her summarily. The 1st defendant also submitted that the claimant admitted that she was interviewed at Chelsea Hotel in the company of a colleague but that she was not afforded opportunity to cross-examine the 2nd defendant or any of the other sources contacted by the panel during the investigation. To the 1st defendant the fact that the claimant did not cross examine the 2nd defendant is not a ground to invalidate the panel’s interview and report. The 1st defendant also submitted that the notice of dismissal was not signed by David Higgs, the Country Director of the 1st defendant but by the DW the Deputy Director. The DW testified he signed because he acts for the country Director whenever he is not around and that the claimant committed the gross misconduct when David Higgs was not around, and he signed in the capacity as the acting Country Director. To the 1st defendant the evidence of DW should be accepted that the notice of dismissal was signed by DW in his capacity as Acting Country Director of the 1st defendant, and that the act of the agent is the act of the principal. The learned counsel went on to argue issue 2 which is whether in the circumstances of this case and considering the evidence led before this Honourable Court the defendant published a defamatory statement concerning the claimant . On this issue the 1st defendant’s case is that the claimant claims that the notice of dismissal (Exhibit D23) contains defamatory statement and has caused the claimant some irreparable loss. The claimant claims that the said defamatory statement were first published to the computer Secretary/Typist of the 1st defendant and sent vide e-mail of the 1st defendant and DW1. That the claimant further claims that the content of the notice of dismissal have been severally republished to the NEXT NEWS by David Higgs, the Country Director of the 1st defendant. To the 1st defendant the totality of the evidence by the court shows that the claimant’s case of libel is misconceived as there was no publication of defamatory statement by the 1st defendant. To the 1st defendant under Nigeria law the tort of libel is actionable wherever there is a publication of defamatory words about the claimant to a third party. The defendant submitted that the claimant claimed that the first basis is the notice of dismissal issued to the claimant by the defendant on the 1st July 2010. The second basis is the NEXT NEWS report published on 23rd February, 2011 by one Idris Akinbajo. That by these acts she was defamed by the statements contained in both documents and that same was published to third parties. Still on the issue of libel, the 1st defendant contended that the claimant did not call names of persons she mentioned in her pleadings to testify on how the contents of Exhibit D23 came to their knowledge and whether the 1st defendant indeed published the contents of Exhibit D23 to them. To the defendant from the words in evidence of CW2, it is clear that the claimant herself published Exhibit D23 to CW2. The 1st defendant further contended that assuming without conceding that if Exhibit D23 contains defamatory statements concerning the claimant, the 1st defendant is not liable for publication by the claimant’s careless release of Exhibit D23 to CW2. Relying on the case of Ayeni V Adesina (2007) 7 NWLR (Pt. 1023) 233. On the claimant’s claim that the statements contained in the notice of dismissal was first published by the 1st defendant to the Computer Secretary/Typist of the 1st defendant and sent vide e-mail of the 1st defendant and Amer Ramzan. That the making of Exhibit D23 and passing through the medium alleged by the claimant to the 1st defendant there is no third party in all the foregoing persons and therefore the communication is privileged as Exhibit D23 was made in the official duty. The 1st defendant also contended that there was no evidence given that the content of the notice of dismissal was ever shared with the staff that accompanied Mr. Ramzan and the delivery of the notice of dismissal to the claimant in the presence of a colleague which does not amount to publication of the contents of Exhibit D23 to the third party. Still on this issue the 1st defendant contended that it cannot be held liable for the contents of the NEXT NEWS report of 23rd February, 2011. Contending further that the claimant having instituted an action at Federal Capital Territory, Abuja for unlawful dismissal that contents of all the documents filed in the suit have become public records which any journalist can access. The 1st defendant therefore submitted that the claimant’s submission against the 1st defendant is misconceived and ought to be dismissed. On the issue No. 3 Whether in the circumstance of the case and considering the evidence led before this Honourable Court, the claimant is entitled to the reliefs sought. The 1st defendant submitted that in the present case the claimant claims amongst others, an order of reinstatement or a general and special damages of N303,233,145.00 (Three Hundred and Three Million Two Hundred and Thirty-three Thousand One Hundred and Forty-five Naira) Only for wrongful dismissal and outstanding salaries and allowances from 1st July, 2011 till the date of Judgment and 13% interest rate per annum on the Judgment sum until the Judgment sum is paid. The 1st defendant argued that assuming without conceding that the claimant’s employment was wrongfully terminated, that her remedy in law is the salary of one month notice which she ought to have received under Section 9.1 of TACCOS and that she is not entitled to an order of reinstatement. That it has not been the policy of courts to force a servant on an unwilling master Borisade V N.B.N. (2007) 1 NWLR (Pt. 1015) 217 . That the present case is not an employment with statutory flavour. That where the employment is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. That the claimant can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement Eze V Spring Bank (2011) 12 SC (Pt. 1) Pg. 173. The 1st defendant urged the court to decline the relief of reinstatement and arrears of salary sought by the claimant. On general and special damages the defendant responded stating that the general and special damages of N303,233,145.00 (Three Hundred and Three Million Two Hundred and Thirty-three Thousand One Hundred and Forty-five Naira) Only for unlawful dismissal and outstanding salaries and allowances due from 1st of July 2011 to the date of Judgment and thereafter 13% interest rate per annum on the Judgment sum till the payment is effected is misconceived and ought to be discounted. That damages for wrongful dismissal based on breach of contract of employment is the amount the employee would have earned under the contract for the period until the employer could lawfully have terminated it. Citing the case of Produce Marketing Board V Adewunmi (1972) 1 NWLR (Pt. 2) Pg. 433. That in ordinary contract of employment such as the one where the terms provide for a length of notice before termination the only remedy an employee can get is that sum equivalent to the length of notice as salary in lieu of notice at the time the employment was brought to an end. The 1st defendant urged the court to hold that the claimant is entitled to only one month salary in lieu of one month notice. On pension contribution and end of service pay which the claimant is claiming in lieu of pension calculated at the rate of one month salary per year that is the sum of N4,233,145.00 (four Million Two Hundred and Thirty-three Thousand One Hundred and Forty-five Naira) Only ought to be discountenanced. The defendant referred to Clause 9.5.2 of the TACOS which provides thus:- End of service payment are payable to staff who voluntarily (sic) resign, retire, are dismissed on disciplinary grounds or due in service. This is in view of the unassailable evidence of pension contribution having been made on her behalf in accordance with the provisions of clause 9.5.2. of the TACOS. In conclusion the defendant submitted that the whole claim of the claimant lacks probative evidence and if the court is mindful in conceding that the claim that her employment was wrongfully terminated that the claimant is only entitled to the sum of N168,057.00 (One Hundred and Sixty-eight Thousand and Fifty-seven Naira) Only mentioned under cross examination for the alleged wrongful termination of her employment. The learned counsel for the claimant submitted in the final written address four (4) issues as arising for the determination of this suit. These are:- 1. Whether the claimant has proved that she was summarily dismissed for specific reasons by the 1st defendant which are false in breach of her contract of employment, her constitutional right to fair hearing and the rules of Natural justice by a person who has no authority to dismiss her, and if so whether the purported summary dismissal is not unconstitutional, illegal, null and void and of no effect whatsoever? 2. Assuming (without conceding) that the answer to issue No. 1 is in the negative, whether the 1st defendant is justified in relying on the proven misconduct on the 2nd defendant (‘colleague’) to summarily dismiss the claimant, more so in view of the fact that by Exhibit ‘22’ and ‘31’ the 1st defendant disclosed express waiver or condonation of the alleged misconduct and by Exhibits ‘42’ and ‘43’ the alleged misconduct of the claimant is unfounded? 3. Whether the claim of libel is made out having regard to the claimant’s pleadings, the evidence in that direction and in the light of the nature of the defences set out by the defendant? 4. On the Resolutions of the issues No. 1, 2, and 3 above in the affirmative what are the claimant’s remedies? In respect of issue No. 1 Whether the claimant has proved that she was summarily dismissed for specific reasons by the 1st defendant which are false in breach of her contract of employment, her constitutional right to fair hearing and the rules of natural justice by a person who has no authority to dismiss her, and if so whether the purported summary dismissal is not unconstitutional, illegal, null and void and of no effect whatsoever? The claimant’s counsel submitted that the claimant’s permanent and pensionable employment with the 1st defendant was terminated by way of summary dismissal firstly in breach of the contract of employment as stated in Exhibits 1, 2, 3, 4 as well as in gross violation of her constitutional right to fair hearing and the rules of Natural Justice in that the claimant’s purported letter of dismissal was not signed by the appropriate authority having regard to Section 7.2 of the TACCOS (Exhibit 4) Exhibits 1, 2, and 23. That for a letter of termination or dismissal to be effective in law, it must be issued and signed by the appropriate authority. Relying on the case Ashibogun V Afprint (Nig) Ltd (1985) HCNLR 80. Ukwa V Nwaeche (1993) 5 NWLR (Pt. 293) P. 295 at 308, Okchae V Governor Bendel State (1990) 4 NWLR (Pt. 142) P. 327 at 367. The counsel to the claimant contending that an agent such as the Country Director (David Higgs) under Exhibit 4 whom the 1st defendant delegated the function of instructing or authorising or endorsing Exhibit 23 cannot further delegate it without the express authority of the 1st defendant principal or authority derived from Exhibit 4. Relying further on the case of Bamgboye V University of Ilorin (1991) 8 NWLR (Pt. 207) P. 1 at 30 and Okoro V Delta Steel Co Ltd (1990) 2 NWLR (Pt. 130) P. 87 at 105. The learned counsel further contended that the claimant’s two letters of offer of employment and increase in salary Exhibits 1, 2, 3 were signed by a Director of the 1st defendant and not a Deputy Director. That it is settled law that a person or a party as the defendants in this case who asserts otherwise are duty bound to produce evidence either on face of the document or in addition to other evidence that the person who purported to act was duly authorised to do so. Wilson V A. G. Bendel (1985) 1 NSCC (Part 1) Vol. 16 Pg. 191. To the counsel Exhibit 4 is a written contract which cannot be varied with oral or extrinsic evidence. The learned counsel to the claimant also submitted that the provisions of Exhibit 4, that is Section 7.1 – 7.2 relating to fair hearing were denied the claimant. That the concorted charge(s) on the Notice of Dismissal were never at any point in time a specific subject of disciplinary action issued between the claimant and the defendants. That they only constitute a best relationship issues between the claimant and fellow workers that were treated at Grievances Investigation level leading to Exhibit 15. That the 1st defendant admitted that the report it relied upon were not intended to indict the claimant and that the claimant was not entitled to see or react to any of them yet these reports without any dispute were the premises for the dismissal. These reports were not tendered by the 1st defendant though they were readily available. The counsel urged the court to invoke Section 167 (d) of the Evidence Act 2011. That the report Exhibit DW15 could not have satisfied the rule of audi alteram paterm, as the panel report did not provide the claimant any opportunity to confront adversary, the 2nd defendant in this case or to see or controvert the evidence it had from other sources. It was on this report that the 1st defendant purported to dismiss the claimant. To the counsel there was nothing in the panel’s conclusion that the claimant be dismissed . The counsel contended further that it is settled law and it is not proper for an employer to remove an employee on the basis of the report of an investigation panel only. The employer should take a step further by setting up a disciplinary panel that would determine the guilt or innocence of the accused employee. The counsel said in view of the foregoing the court should hold that the purported dismissal of the claimant on the basis of the reasons adduced in her letter of dismissal by the defendants were firstly in gross and violent breach of their own document Exhibit 4 on fair hearing and due process. Secondly it was a breach of Section 36 of the Constitution on fair hearing and the Rules of Natural Justice. In arguing issue No. 2 the learned counsel for the claimant contended that assuming (without conceding) the answer to issue No. 1 is in the negative, whether the 1st defendant is justified in relying on the proven misconduct of the 2nd defendant (‘colleague’) to summarily dismiss the claimant, more so in view of the fact that by Exhibit ‘22’ and ‘31’ the 1st defendant disclosed express waiver or condonation of the alleged misconduct and by Exhibits ‘42’ and ‘43’ the alleged misconduct of the claimant is unfounded? The claimant’s counsel urged the court to expunge Exhibit D21 from the record or in the alternative the court should not lend any weight at all to it in the determination of the case. That Exhibit D21 is a privileged communication made in confidence for the purpose of compromising an alleged dispute which is excluded by the 2nd limp of Section 26 of the Evidence Act 2011 and that one of the necessary parties Chika Idoko is not before the court and the alleged maker of the document dogged from tendering the document. The counsel gave reasons why the documents should be expunged from the record in that the second defendant was alleged to have written same based on what transpired between the claimant and one Chika Idoko. That the document has nothing to do with the 1st defendant and was not pleaded any wherein the defence. It is a remote fact, and also irrelevant fact and should be excluded from the record. To the counsel a permanent and pensionable employment as it is in this case can only be determined for good cause. Since it is a settled law that it is possible for a private sector employment to enjoy the type of protection attached to that term. Imolame V WAEC (1992) 9 NWLR (Pt. 265) P. 303 and Ewaremi V A.C.B. Ltd (1978) ANLR 114. “That termination of a contract of employment involves a period of notice. Termination is a normal disengagement in employment and it does not usually entail any wrong doing on the part of either party in particular the employee. Termination may be anchored in lieu of notice in which situation the period of notice is not required to be worked out. The party given this type of notice is required to pay the other for the period of notices otherwise it will be regarded as wrongful termination of contract of employment. On the whole the claimant is entitled to the earnings due to him before the contract was terminated” Osisanya V Afribank (Nig) Plc (2007) 6 NWLR (Pt. 1031) 565. The learned counsel also referred to the evidence of Akin Fadeyi, who tendered exhibits F1, and F2. While F1 which is the official report of the 1st defendant on the Kano event, F2 was the official video coverage of the Kano event which was watched live in the open court. The counsel said every single piece therein confirms the statement in Exhibits 42 and 43 which is contrary to the defendants assertion and Exhibit 22 and 23 that the claimant set an unbeatable precedent of a pilot programme of the 1st defendant’s Active citizens Programme in Kano. The learned counsel went further to submit that the facts goes to prove the fact of institution/individual gender and Racial tendencies of the defendants in that they seek to make the claimant a scape goat purely for the malfeasance or misconduct of the 2nd defendant. To the counsel oral and documentary evidence of PW2 and PW3 were direct eye witness account of the 2nd defendant’s blunder in the Kano events demonstrated beyond reasonable doubt that the defendants labour racial degrading, discriminating, and deprivation attitudes contains in Section 42(2) of the Constitution. The counsel submitted it is settled in employment law that it is unlawful to discriminate against a person on racial grounds and once a person is employed it is unlawful to discriminate against him or her on racial grounds. The learned counsel for the claimant also submitted that the claimant has set out and proved a case of inducement or procuring a breach of her contract with the 1st defendant by the 2nd defendant, the attempt made to induce the breach is patent from exhibit D21 and 43, the claimant has suffered damages as a result of this, which is a violation of right to interfere with contractual relations recognized by law. Submitting further that the defendants were in possession and fully aware of or had knowledge of facts of the alleged misconducts prior to the 1st July, 2010 as revealed in Exhibits 22, 42, 43 and D21 which they intended to waive and the 1st defendant expressly waived the alleged misconducts and the claimant in law is entitled to expect legitimately that she would no longer be penalized by dismissal based on the allegations. The counsel submitted that based on the foregoing arguments the court is urged to resolve the issue No. 2 in favour of the claimant against the defendants. On issue No. 3 Whether the claim of libel is made out having regard to the claimant’s pleadings, the evidence in that direction and in the light of the nature of the defences set out by the defendant? The claimant ‘s counsel submitted that the cause of action for libel is set out in paragraphs 25 to 35 of the claimant’s further amended statement of claim and paragraphs 22 to 25 of her reply to the 1st defendant’s amended statement of defence of 15/1/2013. To the counsel the claimant has successfully proved publication of the original libel to a third party different from the 1st defendant itself and the claimant in this case alleged Assistant Director/Head, Human Resources of the 1st defendant who is not authorised to write or prepare exhibit 23 from Amir Ramzan, DW1 who admittedly instructed or dictated the contents of Exhibit 23 to her or Amir Ramzan (DW1) who is also not authorised under Exhibit 4 to sign Exhibit 23 but he signed it or as more credible in this case the Computer Secretary/Typist who typed Exhibit 23 which clearly on the face of it not a product of any e-mail print out at all or working document. To the counsel the claimant has proved multiple libels against the defendants jointly and severally by Exhibit 61 which is a republication by the defendant’s agents aggravating the original libel in Exhibit 23. The claimant therefore urged the court to resolve issue No. 3 in favour of the claimant and against the defendants. The claimant counsel submitted that at law where an employee’s termination is declared wrongful and set aside, he is entitled to all claims and damages due to him/her even though his/her reinstatement is not ordered. Omenkav Morison V Morison Ind. Plc (2003) 13 NWLR (Pt. 683) P. 148. To the claimant’s counsel in computing damages to which an unlawful dismissal of the claimant as in this case is entitled in the first instance awards as damages the amount which the worker would have earned had the contract lasted its full time. That in this case, 35 years of the total 55 years which is the contemplated time by the express agreement or necessary implication of the parties vide exhibit 4, the TACOS, 2006. That applying this principle of computation the courts take into account human factors such as age opportunity for obtaining a new comparable employment, and other fringe benefits that may have accrued to the worker. The counsel submitted that the claimant being a career pensionable and permanent staff of the 1st defendant having spent more than the minimum six months service prescribed by Exhibit 4, she is entitled to that relief. To the counsel the general principle of law that there is no obligation to a dismissed employee without prejudice to refunding of whatever financial contributions to the dismissed employee might have made into any financial scheme set up by the employer does not apply to this case. This is because by Exhibit 4 the contract TACOS the 1st defendant held out itself expressly to award the fixed sum in clause 9.5.2 of Exhibit 4 and that the 1st defendant is statutory bound by the provisions of the pension reform act 2004. The counsel contended that the defendants are not only bound by the express wordings of clause 9.5.2 they are bound to refund whatever contributions she had made back to her. To the counsel what an employee loses by premature determination of his contract may be co-extensive with the amount of his presumed salary or wages for the unexpired residue of the life of the contract. On claimant’s relief for general damages the claimant’s counsel submitted that the relief is premised on the aggravated, reckless, malicious and irresponsible manner of the dismissal of the claimant. That at law the assessment of damages in a libel is usually subjective and however exemplary damages are usually awarded where a defendants tortuous act is done with a guilty knowledge, the principle being to teach the defendant that tort does not pay. The conduct of the defendant is a matter which the plaintiff may rely upon in the determination of aggravated damages. in this case the conduct could be inferred from the conduct of the defendants in repeating the libelous publication complained about that the publication amounted to malevolence or spite and was meant to injure the claimant’s feelings, dignity ,pride and ridicule her. Continuing, the counsel said in this case having regard to all the facts and circumstances an award of an aggravated and exemplary damages for libel will be most appropriate (the original Exhibit 23 and publication Exhibits E61, A2, and E61A). The counsel then went on to refer to Order 21 R 4 of the Rules of this Honourable Court which provides for post judgment statutory interests which must not in each case be specifically prayed for, but does not depends on the judge’s discretion, it is automatic. On points of law the defendants submitted that the claimant’s counsel filed on the 6th November, 2014 is incompetent and the final written address which therefore should be discountenanced same having predated the 1st defendants final written address contrary to the provisions of the Rules of this court. That the order of filing written addresses provided for has been observed by the claimant’s counsel as his final address was filed in response to a non-existing written address. However, the defendants submitted that if the court deemed the claimant’s final written address as having been properly filed they urged the court to discountenance the submissions contained therein as they are largely misconceived and off the point. The defendants submitted on the issue of whether the claimant was dismissed by appropriate authority of the 1st defendant and argued that DW1 testified under cross examination that at the time of the dismissal of the claimant, David Higgs the Country Director was not in the country and in his stead he (DW1) acted as the Acting Country Director of the 1st defendant and the notice of dismissal was signed by him as the Acting Country Director. It is also the defendants’ argument that the 1st defendant granted the claimant a fair hearing to make her representation in respect of the allegations against her. Relying on the case of Baba V N.C.A.T. C (1951) 5 NWLR (Pt. 192) 388 at 418. They contended that the procedure adopted by the 1st defendant is regular on the authority of C.C.B. (Nig) Ltd V Nwankwo (1993) 4 NWLR (Pt. 286) 159 at 173 paragraph E. The 1st defendant argued that the claimant’s contention in paragraph 2.13 of her final address is that the 1st defendant did not wait till the end of the period stipulated in the final written warning of 1st July, 2010 before she was summarily dismissed should be discountenanced. Arguing that it is not the duty of the Honourable Court to determine the reason for dismissing an employee. While arguing further on point of law on the issue of libel, the defendant went on to say that Exhibit 23, the notice of dismissal was handed to the claimant by the 1st defendant to terminate her employment whereas Exhibit E61 is a news report by a journalist of the proceedings in the High Court of the Federal Capital Territory, Abuja in respect of a case instituted by the claimant. Arguing that a person cannot be liable for libel or its republication where he has neither made nor authorised the publication or republication of the alleged libel citing the case of Truth (NZ) Ltd V Halloway (1960) 1 WLR 151. Concluding on this issue the 1st defendant counsel submitted that the first defendant is not liable for defamation of the claimant as it did not publish any defamatory statement of the claimant. The defendants counsel submitted that the measure of damages in unlawful dismissal case is a matter of law which the claimants counsel in his submission misconceived. That assuming without conceding the claimant was unlawfully terminated, the claimant relief cannot be supported both by law and available evidence. A court of law will not grant damages in respect of earnings which an employee could have received up to the time of attainment of voluntary retirement, in an action for wrongful dismissal. In conclusion the defendants counsel submitted that in view of the facts of this case the evidence led at trial, the submissions as well as the judicial authorities cited that the claimant’s action is frivolous, vexatious, and unmeritorious and for this they urged the court to dismiss the action. Given the facts of this case, the evidence led, the submissions of counsel and the authorities cited, the issues for the court to determine are:- a. Whether or not there was proof of the allegation made by the defendant against the claimant to justify her summary dismissal and if she is not entitled to be reinstated to her former position. b. Whether or not the claimant is entitled to be paid her outstanding salaries and allowances from 1st July, 2010 to 1st June 2045 (i.e for another 35 years when the claimant would have lawfully retired or disengaged from the employment of the 1st defendant). Totaling N303, 233,145.00 (Three Hundred and Three Million Two Hundred and Thirty-three Thousand One Hundred and Forty-five Naira) Only. Thereafter 13% interest per annum until payment is effected as general and special damages c. The cost of this suit, In dealing with the first issue (a) above, it is trite law that when an employee complains that his employment has been wrongfully terminated he has the onus first to place before the court the terms of the contract of employment and prove in what manner the said terms were breached by the employer. See Amodu V Amode (1990) 5 NWLR (Pt. 150) 356. The terms and conditions of an employment is the bedrock upon which the claimant must establish his case, he succeeds or fails upon the terms thereof. Therefore in a written contract of service the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties, as parties are bound by the provisions of the contract of service. The terms of the claimant’s employment are contained in her letter of offer as Governance Assistant dated 29th January, 2003, the letter of offer of Continued Indefinite Term Employment of 19th November, 2007, the British Council Region East and West Africa Country, Nigeria Terms and Conditions of service for country appointment staff effective 1st December, 2006, Exhibit 4, Annual Pay Review of 28th August, 2009 and Grievances Employee Relations. In this case the main contention by the claimant is that the decision to dismiss her from the service of the 1st defendant was taken without giving her an opportunity of a fair hearing and was not in accordance with the terms and conditions of the contract Exhibit 4. The 1st defendant on his part claimed that the claimant employment was terminated in accordance with her employment contract. From the state of pleadings and evidence adduced at the trial, the type of employment disclosed is purely master and servant relationship which enjoys no statutory flavour, and the law recognises the right of the master to sack the servant with good or bad reason(s) or without any reason at all. Where reasons are given the court has the right to examine them, and the onus is on the employer to satisfactorily prove the same, otherwise the dismissal will constitute wrongful dismissal without more. In the case at hand the notice of dismissal dated 1st July, 2010 gave reasons for the termination of the claimant’s employment with the 1st defendant, as contained in paragraphs 1 and 2 of the dismissal letter. What can be gathered from the notice of dismissal is that the dismissal was based or founded on the investigation panel that interviewed the claimant and the 2nd defendant Ben Fisher at Chelsea Hotel. The panel of investigation came to the conclusion and found her guilty of spreading malicious rumours about a colleague and for poor performance. From the evidence before the court, it is not in dispute that the investigation panel invited the 2nd defendant and the claimant to separate interview, after which the panel submitted the report to the 1st defendant. The law is that an employee against whom an allegation of serious misconduct is laid, cannot be removed without being heard. Similarly, an employee who is accused of misconduct is entitled to call his witnesses, if he has any and must be heard. Also the employee must know the full case against him/her, he or she should be present when witnesses are testifying against him/her. No documentary evidence shall be used against the officer unless it has previously been supplied with a copy thereof or given access thereto If this procedure is not adopted it would amount to a denial of natural justice. In the instant case, the claimant was dismissed on report of a mere investigation panel. She was just invited for interview and prevented from meeting and putting questions to her accusers. This is contrary to the provisions of her terms and conditions of service as stated under the provisions of Sections 7, 7.1, 7.2,7.3, dealing with Discipline and Appeals Exhibit PW4 and British Council Grievance Employee Relation Exhibit DW4 dealing with grievance procedure and step to be taken in resolving it. From the foregoing, it is very clear that the 1st defendant breached its own rules and regulations Exhibit PW4, DW4 and the laid down rules of natural justice. She was dismissed following the report of an investigation panel, without any disciplinary committee to look into the report of the investigation panel. It is therefore correct to say that her fundamental right of fair hearing was totally breached. See the case of UBN V Musa 2012 CA. The point here is that the panel is purely investigative it lacks disciplinary power. It is not proper for an employer to remove an employee on the basis of the report of an investigative panel only. The employer should take a step further by setting up a disciplinary panel that would determine the guilt or innocence of the accused employee. The e-mail sent out by the claimant would have been looked into, the claimant would have been asked questions she would have been given the opportunity to defend herself. Though in my view the claimant could have taken her complaint to the management rather than sending e-mail that could cause dissatisfaction in the organization. A denial of right to be heard is a breach of constitutional right , and natural justice and no decision can be regarded as valid unless both sides in conflict have been heard. The allegation of poor performance of Kano event levied against the claimant was never proved. Assuming without conceding that there was poor performance of Kano event what should have been done by the defendant in accordance with his own rules and regulations is to discuss and assist the claimant in improve her performance but this was not done before the claimant’s employment was determined. The court was privileged to watch the video coverage of the Kano event along with the defendant and the claimant and everything went well from what I saw in the video. If the local participants were not happy with the decision of Ben Fisher to exclude them from the visit to the Emir and the participants complained, the claimant should not be held responsible. Let me say that the right to fair hearing is a cardinal principle as provided for in Section 36 of the 1999 Constitution (as amended) it is the law that a man can never have a verdict entered against him on a matter relating to his civil right without being given an opportunity of being heard. For this reason the dismissal of the claimant vide letter of dated 1st July 2010 is hereby declared wrongful. In a master and servant relationship, a dismissal of an employee by the employer cannot be declared null and void and of no effect whatsoever. The employee’s remedy is in damages which will be calculated in terms of what the employee would have earned over the notice period required to lawfully dismiss the employment. It is only when the employment is governed by statute that the procedure for discipline including dismissal that the employer must be strictly adhered to. UBN V V.C. Ugboh (1995) 2 NWLR (Pt. 380) 687. I therefore find it difficult to order re-instatement of the claimant back to her employment with the 1st defendant as I am aware of the judicial leaning against imposing on an unwilling employer an employee. This takes me to the next issue which is for the court’s order compelling the defendants to pay the claimant all the outstanding salaries and allowances due to her from 1st day of July, 2010 to the date of the Judgment and thereafter 13% interest therein per annum until the payment is effected. The claimant is claiming the sum of N132,891,15 (One Hundred and Thirty-two thousand Eight Hundred and Ninety-one Naira Fifteen Kobo) Only based on the claimant’s last salary increment as stated in the 1st defendant’s letter of salary review dated 28/8/2009 being the sum of N3,185,611.89 (Three Million One Hundred and Eighty-five Thousand Six Hundred and Eleven Naira Eighty-nine Kobo Only) multiplied by thirty-five years from the 1st day of July, 2010 till the 1st day of 2005 (sic) (2045) (being thirty-five years) when the claimant would have lawfully retired and/or disengaged from the employment of the 1st defendant. What this means is that the claimant is claiming her salaries and allowances for the unexpired period of service for 35years between 1st July 2010 to 1st June 2045. The measure of damages in the case of wrongful dismissal is always the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment and not salaries up to retirement see V.S. Onalaja V. African Petroleum Ltd (1991) 6NWLR (pt 198) at 492. In an ordinary master and servant relationship like this one, termination of a contract of service even if unlawful, brings to an end the relationship of master and servant. The law is that a servant would only be paid for the period he served his master and if he is dismissed as in this case, although wrongfully all he gets is damages in the amount he would have earned if his appointment has been properly determined. The claimant’s appointment is governed by the contract she entered into at the time of her appointment. Since her appointment was terminated with immediate effect, she is entitled to a month notice before her appointment could lawfully be terminated. She is therefore entitled to one month’s salary in lieu of notice and other legitimate entitlements due to her at the time the employment was brought to an end. As the employment of the claimant was not shown to be specifically protected by statute. Stephen Okongwu V NNPC and P. C. Imolone (1989) NWLR (Pt. 115) 296. Relief 3, 5 and 6 will be considered together by the court. Relief 3, for N200,000,000.00 (two hundred million Naira ) only being damages for libel occasioned by the claimant by the defendant and his servant agent and privies in the course of occasioning the breach of contract of employment between the parties. Reliefs 5, Perpetual injunction restraining the defendant their servant, privies and agent for further publishing defamatory words of and concerning the person of the claimant and While in relief 6 the claimant is demanding a letter of apology from the defendant to be published in Economist Magazine, The Times of London, Newswatch and the Guardian Newspaper with prominent headlines retracting falsehood contained in the letter of warning and dismissal in this case. The allegation of libel in my view has not been proved against the defendant in this matter. The law is that anybody who publishes anything injury, to the good name, reputation or estimation commits the tort of libel (if written) and slander (if oral). The onus on the claimant in an action for libel is to prove that the defendant, (1) publish in permanent form or a statement (2) that the statement refer to her (3) that the statement was defamatory or fame in the sense that (4) it lowered him in the estimation of right thinking members of the society (5) it exposed her to hatred, ridicule or contempt (6) it injured her reputation in her office trade or profession or (7) it injured her financial credit In other words for an imputation to be defamatory it will have to be proved to have discredited the claimant. In my view the claimant reputation has not been lowered in the estimation of people. The magazine has not been called to say how they came about the news. The assertion of the defendant that the magazines might have gathered the information from the suit filed at FCT High Court, Abuja by the claimant was not controverted. In an action for defamation the onus is on the claimant to prove that the word complained of convenes a defamatory meaning to which they have published. From the evidence it is also my view that reading the whole word in the context and the circumstances they were used there is nothing libelous about the notice of dismissal and warning letter. The claimant did not give evidence even at the trial showing how her status was lowered in the estimation of a right thinking men of his community or that she was exposed to hatred contempt or ridicule, the claim of N200,000,000 is therefore rejected. The court declines to grant any order of perpetual injunction but the defendant should not published anything that will ridicule or embarrass the claimant. The court will not order the defendant to write any letter of apology to the claimant or publish apology in any magazine or Newspapers. Judgment is entered accordingly. _______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE