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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ENUGU JUDICIAL DIVISION HOLDEN AT ENUGU BEFORE HIS LORDSHIP, HON. JUSTICE A. IBRAHIM DATE: 23rd June, 2015 SUIT NO. NICN/EN/124/2012 BETWEEN: SYLVERSTER ONU=====================================CLAIMANT AND FIRST BANK PLC=====================================DEFENDANT REPRESENTATION D. O. Eze Esq. appeared for the Claimant. Obinna Nnaka Esq. appeared with F. C. Ofodeme Esq. for the Defendant. JUDGMENT This case was transferred to this Honourable Court pursuant to the order Of Honourable Justice C.I. Nwobodo of the High Court of Enugu State made on 2nd day of May 2012. The Claimant commenced the suit by taking out a writ on the 8th day of September, 2010, along with which he filed a Statement of Claim praying for the following reliefs against the Defendant: a. A declaration of court that the termination of the Claimant’s appointment on 8th April, 2008 was wrongful and unjustified. b. An order of court reinstating the Claimant to his duty post as though he had never been terminated. c. An order of Court directing the defendants pay to the Claimant all his salaries, allowances and or other perquisites accruable to his office from the date of the purported termination until judgment is delivered. d. An order of court that the Claimant is entitled to all the promotions which he would have had but for the purported termination. e. Alternatively, N50, 000,000.00 being special and general damages for wrongful termination of the Claimant’s appointment which includes his gratuity. The Statement of Claim was accompanied with a written statement on oath of the Claimant, list of witnesses and list of documents to be relied upon at trial. Upon being served the processes of the Claimant, the Defendant entered appearance dated 30th November, 2010 on the 1st day of December, 2010. The defendant also filed a Statement of Defence on the 9th day of February, 2011. Accompanying it are list of witnesses, witness statement on oath, and list (and copies) of documents to be relied upon at trial. The Claimant further filed a reply to the Statement of Defence dated 21st day of March, 2011 on the 23rd day of March, 2011. Filed is a further Statement on oath of the Claimant dated 23/03/2011. Furthermore, by leave of court granted on 15/05/2013, the claimant amended his list of documents and also filed copies of the documents to be relied upon at trial. The case proceeded to trial. The Claimant gave evidence as CW1 in support of his case. He also tendered Exhibits A, A1, B, B1, B2, C, D, E, F, F1, G, G1, G2, G3, H and J. The defendant called one witness who gave evidence as DW1 and tendered Exhibits K, L, L1, L2, L3, L4, L5, L6, M, N, O, P, P1, Q and Q1. At the close of the case of each the parties, their respective learned counsel filed final written addresses which they respectively adopted. The learned counsel for the defendant filed his address dated 21st day of July, 2014 on 20th day of August, 2014. The learned Claimant’s counsel filed his final written address dated 21st October, 2014 on 22nd October, 2014. The Defendant’s counsel did not file any reply on points of law. In his final written address the Defendant formulated and argued the following issues for the court’s determination: i. Whether the appointment of the Plaintiff in this case was lawfully terminated by the Defendant? ii. Whether the Plaintiff is entitled to any of the Claims sought in this Suit? Arguing the first issue learned counsel submitted that when a Claimant alleges wrongful termination of his job, he must place before the Court, the Contract of Employment and then he must go ahead to prove in what manner the said terms were breached by the employer. Learned counsel referred to the case of KATTO V C.B.N (1999) 6 NWLR (Pt. 607) 390 @ 405, paras B-C 8.0.3. He added that the state of the law as it relates to termination of Contract or appointment is that the Court will not only look at the terms of the Contract or Appointment but must limit itself to the said terms. He referred to the case of LAYADE V PANALPINA WORLD TRANS. NIG. LTD (1996) 6 NWLR (Pt. 456) 544 @ 558, para B. He urged the Court therefore to limit itself to the terms of the appointment as contained in the letter of Appointment (Exhibit A) and the Handbook (Exhibit D). The Defendant further submitted that a proper evaluation of the manner of termination of the appointment of the Claimant by the Defendant will entail a study of the following Exhibits: a. Exhibit A - Letter of Appointment of the Claimant dated December 9, 1977. b. Exhibit C - Letter of termination of Appointment dated April 08, 2008. c. Exhibit D -First Bank Employee Handbook, March, 2007. On Exhibit A (Letter of Appointment of the Claimant), learned counsel stated that it contains an undertaking which the Claimant signed upon receipt of the Letter of Appointment. Paragraph 4, page 2 of the Letter of Appointment contains the following: I agree to the terms of engagement and service in the Standard Bank Nigeria Limited, as contained in this form and I understand clearly that any breach of the undertakings will render me liable to instant dismissal. (Emphasis by learned counsel). On Exhibit C (the Letter of termination) counsel stated that it specifically stated that the service of the Claimant was no longer required. This was however written after 31 years of service by Claimant and after due process had been followed by the Management of the Defendant. He stated further that the Defendant did not have to state more in the said Exhibits C and D, referring to the case of IHEZUKWU V. UNIVERSITY OF JOS (1990) NWLR (Pt. 146) 598 @ 610, paras A-B. Furthermore, that Exhibit D (First Bank Employee Handbook, March 2007) provides under Article 8.10. C that: Notwithstanding the above provisions, any employee who is guilty of gross misconduct shall be liable to summary dismissal. (Emphasis by learned counsel). Beyond the above, Article 14 of the Exhibit D makes adequate provision for disciplinary procedure. Again counsel stated that where a Contract is written or documented, the Court will not look beyond the Written Contract or documents in determining the rights and duties of the Parties, referring to KATTO V C.B.N (Supra), 405 paras D-F. Exhibit D and other Exhibits provide the guide to the Honourable Court and he urged the court not to look any further for help in determining the legality or lawfulness of the termination. He reproduced the Disciplinary Procedure agreed by Parties herein in Article 14 of Exhibit U thus Article 14: • When an employee fails to perform his/her work satisfactorily or commits an act of misconduct or negligence, he/she shall be given a query to explain the circumstances regarding his/her conduct within 48 hours. • Further investigations may be carried out on receipt of the reply to the query. • Depending on the gravity of the offence, the case could be referred to the Head Office Disciplinary Committee (HODC) or Human Capital Management Disciplinary Committee (HCMDC) or any of the relevant Business Development Office Disciplinary Committees (BDODC) depending on the location/grade of the affected employee. Subsequently, the employee may be let-off cautioned verbally, issued caution letter, warned in writing or have his/her employment terminated/summarily dismissed depending on the decisions of the Disciplinary Committee(s). • Defence at the Disciplinary Committee: any employee whose case is being tried for the first time at Business Development Office or Head Office levels should be given an opportunity to appear before the Disciplinary Committee. If the Committee is sitting outside the employee’s location, the Bank will bear the employee’s cost of transportation, accommodation and feeding during the visit but subject to approval. • Appeal Against Sanctions: A staff who is sanctioned and not satisfied with the Disciplinary Committee’s decision has the right to appeal to Head Office Disciplinary Committee within 3 months of receipt of the letter of sanction and thereafter such appeal will be time barred. Except there is a clear evidence of the introduction of new facts, after an appeal case has been treated, repeated appeals will not be tolerated. Appeals should not go beyond two hearings. • Employees who appeal against Disciplinary Committee’s decision will bear the cost of transportation, accommodation and feeding themselves. Learned counsel stated further that going by the tenor of the above provisions, what is important in determining whether the termination of the Claimant is lawful or not is to ascertain whether he was given a query, investigation carried out, matter referred to a Disciplinary Committee and finally to an Appeal Panel where the Claimant so desires. The truth is that all these steps were taken but the Claimant claims the exercise was a smokescreen. He did not deny the fact that he was availed the avenues but his case is that his fate had been determined relying on extraneous factors. This allegation was not proved before the Honourable Court. That it is pertinent to note at this point that all that is important to prove is not whether the findings of the Disciplinary Committee and the Appeal Panel of the Defendant were right or wrong but whether such avenues were offered the Claimant. The Claimant ought to challenge the manner and not the merit of the procedure. The Claimant’s appointment could have been terminated lawfully for good or bad reasons so long as he was given fair hearing. He referred to the case of LAYADE V. PANALPINA WORLD TRANS. NIG LTD (Supra), 555, para. F. Learned counsel continued that the Defendant in its sole Witness’s evidence in chief, averred at paragraphs 14, 15 and 17 of the Statement on Oath that the Claimant was invited and he participated in the proceedings of the Disciplinary Committee and the Appeal Panel. This is an admission by the Claimant. That the Claimant himself further confirmed the fact that he was availed all the opportunities under cross-examination when he answered that; i. In confirmation that he was invited by a Disciplinary Panel, he answered “……… and the aftermath of the invitation was a letter of let- off the hook. In other words, the allegations were false………..” ii. In reaction to the question on how many times he did appear before the Disciplinary Panel, he answered; “I am not sure exactly but maybe twice or thrice. I cannot say that I defended myself properly before the Panel. This is because they just wanted to see my face, as the decision has already been taken”. Therefore, counsel continued, the Claimant having agreed that he was availed the very disciplinary mechanisms contained under Article 14 of Exhibit D, cannot claim that he was wrongfully sacked. The steps taken by the Defendant’s Management amounts to a full compliance and not just a substantial compliance of the terms of Appointment. That the Claimant testified under cross-examination that he was given a letter of let-off after the suspension was lifted by the Business Development Manager, he however failed to produce the said letter. Counsel then urged the Court to invoke Section 167 of this Evidence Act, 2011 to the effect that such letter did not exist and if it did, the content would have militated against the interest of the Claimant. Rather than satisfy the standard of proof as laid down by law and as expounded by the Supreme Court of Nigeria in KATTO V. C.B.N (supra) cited above, the Claimant averred and testified thus in his Statement on Oath; i. Paragraph 16: That inspite of my excellent records the Defendant still proceeded to unlawfully terminate my services. ii. Paragraph 17: That in compliance with the Employee Handbook, I made an appeal to the Defendant, which was rebuffed as lacking in merit. iii. Paragraph 18: That the termination of appointment was unlawful as it was politically motivated, discriminatory, witch-hunting and an aftermath of power play by the power brokers of the Defendant bank. Learned counsel contended further that it is obvious by the evidence of the Claimant reproduced above that he failed to produce the terms of the Agreement allegedly breached by the Defendant and also failed to prove how his sack breached the said terms laid down in Exhibit D, referring to the case of IWUCHUKWU V. NWIZU (1994) 7 NWLR (Pt. 357) 369 @ 412 para B. The Claimant by the above reproduced evidence attacked the motive of the process employed in his sack and not the manner of it. An evaluation of the case of the Claimant reveals that the Claimant views his termination as wrongful and not that it was regular. Learned counsel submitted that the offence for which the appointment of a staff can be terminated is contained under Article 14.3 of Exhibit D. They include; • Absence from the place proper and appointed for the performance of work without leave or other legitimate cause; • Frequent late arrival at work; • Making himself/herself unfit for the proper performance of his/her work during working hours, for example, by becoming intoxicated; • Neglecting to perform any work; which it was his/her duty to have performed, or carelessly or improperly performing any work, which it was his/her duty to have performed; • Using any abusive or insulting language or becoming guilty of insulting behavior to any person placed in authority over him or her; • Borrowing money from third parties without a formal approval of management; • Refusing to obey any proper instruction from any person placed in authority over him/her whose instruction it was his/her duty to obey and • Any other act of misconduct/negligence as may be determined by management. That under Article 14.5.9 of Exhibit D it is clearly provided that a staff can be sacked upon failure to report promptly, any irregularity on the part of any other staff or non-staff. That assuming without conceding that the wrongfulness of the termination can be seen in the sincerity of the process of termination, counsel stated that by the evidence of the Claimant, he was guilty of neglecting to perform any work which he ought to perform (See Article 14.5.9 of Exhibit D) amongst others. On this, counsel referred to his answer under cross-examination as follows: During my tenure as the Branch Manager of Afikpo Branch, I did not receive any petition from any dissatisfied customers of the Defendant. I did receive petition against some of my staff while I was Branch Manager of Afikpo Branch. The petitions I received I dealt with them as they were not above my authority to deal with them. To the learned counsel, the offences leveled against the Claimant are serious and weighty enough to attract the sanction of termination. Exhibits M and N allege Branch monumental fraud and irregular postings, suppression and conversion of customers’ funds. Furthermore, in challenging his termination, the Claimant averred at paragraph 16 of the Statement on Oath that despite his excellent records, the Defendant proceeded to unlawfully terminate his employment. In proof of his excellent performances, he tendered Exhibit G written on May 20, 2002, Exhibit G1 dated October 29, 1998, Exhibit G2 dated December 5, 1991 and Exhibit G3 dated September 10, 1990. These Exhibits were issued to the Claimant by the Defendant in the years 1990, 1991, 1998 and 2002 while the complexities that led to the termination of the Claimant’s appointment dates back to 2007 (a gap of about five years and more). It is therefore misleading for the Claimant to rely on the said Exhibits to question the legitimacy of his termination. Counsel continued that the Claimant went ahead in paragraph 18 of his Statement on Oath to brand his termination as politically motivated, discriminatory, witch-hunting and an aftermath of power play by power brokers of the Defendant Bank. The Claimant however did not give particulars of these allegations and never attempted to prove them. He is therefore caught by Section 136 of the 2011 Evidence Act as he who asserts must prove. Learned counsel submitted that even if the reasons for the termination border on politics, discrimination, witch-hunt and aftermath of power play as alleged by the Claimant, the reasons will be of no moment as what is important in determining wrongful termination is whether the procedure employed for the termination is in accordance with the terms of appointment of the Claimant. Counsel referred again to the case of LAYADE V. PANALPINA WORL.D TRANS. NIG. LTD (supra) @ 555, paras E-F and he reproduced same dictum thus: Apart from those employments governed by statutory provision e.g. employment in civil service of statutory bodies where termination must follow the provisions of the relevant statutes. (Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 193/1 94, the master in other cases can terminate for good or bad reasons subject to remedies of compensation where applicable for wrongful dismissal. In the instant case the terms of the contract of employment for termination of the contract have been clearly adhered to. (Emphasis is learned counsel’s). Learned counsel finally submitted with regards to Issue one that the Claimant failed to discharge the burden of proof placed upon him by Section 131 of the 2011 Evidence Act and his claims of wrongful and unjust termination must fail. On issue two, learned counsel stated that the Claims sought by the Claimant in this Suit are thus: a. A declaration of Court that the termination of the Claimant’s appointment on 8th April, 2008 was wrongful and unjustified. b. An Order of Court reinstating the Claimant to his duty post as though he had never been terminated. c. An Order directing the Defendant to pay to the Claimant all his salaries, allowances and or other perquisites to his office from the date of the purported termination until judgment is delivered. d. An Order of Court that the Claimant is entitled to all the promotions which he would have had but for the purported termination. e. Alternatively, N50,000,000.00 being special and general damages for wrongful termination of the Claimant’s appointment which includes his gratuity. In argument of this Issue, counsel submitted that having resolved under Issue one that the termination of the Claimant is lawful, it automatically means that the termination was not wrongful and unjustified and every claim flowing from the alleged wrongful and unjustified termination must fail. He added that the Defendant submits that the foundation for the grant of any of the Claimant’s claims is an affirmative pronouncement that the termination of the appointment of the Claimant by the Defendant was wrongful or unjust but that is not the case. The Claimant having failed to persuade this Honourable Court to hold that his appointment was terminated wrongfully or unjustly, there is no basis for the grant of the claims. He referred the court to the case of MCFOY V. UAC LTD (1962) A.C. 152 where the Court held that you cannot put something on nothing and expect it to stand. That assuming without conceding that the termination of the appointment of the Claimant was wrongful or unjust, the Defendant argues as follows with regard to the ineligibility of the Claimant to the grant of the Claims made: i. The 2nd, 3rd, 4th Claims are Claims that were defeated by the Claimant himself when he testified in-Chief in paragraph 14 of his Statement on Oath as follows: That from the date of my appointment to the date of my said termination, I had put approximately 31 years of meritorious service with the Defendant. By this piece of evidence, the Claimant unequivocally stated that he had served the Defendant for 31 years. The Defendant in paragraph 18 of his Statement on Oath averred that the Claimant served for over 30 years. Both Parties are therefore agreed that the Claimant had served for a period over 30 years. A reference to Article 8.12.1 of the First Bank Employee Hand Book (Claimant’s Exhibit D) shows that every appointee of the Defendant is to serve the Defendant for a period not longer than 35 years. The Defendant however under the same, Article 8.12.1 has the discretion to terminate the Claimant’s appointment upon attainment of 30 years in service. These provisions are clear and sacrosanct, leaving no room for ambiguity. He referred to the case of EKEOGU V. ALIRI (1991) 2 NWLR (Pt. 179) 258 273 para C. The Supreme Court of Nigeria held in the case of IHEZUKWU V. UNIVERSITY OF JOS (supra) @ 610 paras B-C (on assessment of damages payable in cases of wrongful termination) that: It is therefore my conclusion that both the trial Court and the Court of Appeal were right when they refused to reinstate the Appellant. The normal measure of damages recoverable by an employee whose contract has been wrongly terminated is the amount he would have earned under the contract for the period until the employer could have lawfully terminated it, less any amount he could reasonably be expected to earn in other employment. But where the employer has a right to terminate the contract before the expiry of the term (as in the instant case) damages should be assessed only up to the earliest time at which the employer could validly have terminated the contract. See British Guiana Credit Corporation V. Da Silva (1965) 1 WLR 248 and also para. 3636 of Chitty on Contract, Vol. 11(24” Edition). (Emphasis by learned counsel). Counsel further submitted that the Defendant has the discretion to terminate the employment after 30 years and it so did. The Claimant therefore is not entitled to the Claims made as he was paid his entitlement, hearing (sic) regard to the discretionary powers of the Defendant. Again, taking into cognizance the fact that Parties are agreed that the Claimant’s termination took place after 30 years of service, the question that remains to be answered by the Claimant is: What tenure will the Claimant be ‘restored’ to and on what basis will he be paid and promoted for the loss of the time resulting from the termination having regard to the Defendant’s discretionary powers to terminate his employment after 30 years of service? The answer is that there is no room left for the recall or reinstatement of the Claimant. ii. The Claimant made an alternative claim for N50,000,000.00 (Fifty Million Naira) being Special and General damages for wrongful and unjust termination of employment. Learned counsel submitted that Special and General damages are different types of damages that are not claimed jointly because: (a) Special damages are damages that must be specially and specifically pleaded with particulars and same proved. See the case of OKUNZUA V. AMOSU (1992) 6 NWLR (Pt. 248) 416 @432 para E. (b) General damages are damages which need not be specially and specifically pleaded and proved, but are presumed by law. They can result automatically from a breach of contract. The award is nominal as against special damages. See the case of YALAJU — AMAYE (1990) 4 NWLR (Pt. 145) 422 @451, paras A — B. (c) The Supreme Court of Nigeria in the case of INCAR (NIGERIA) LTD V. BENSON TRANSPORT LTD (1975) 3. S.C. (Reprint) 81 drew a distinction between Special and General damages when it held thus: As to the allegation of damages, the distinction between Special and General Damages must be carefully observed. General damages such as the law will presume to be the natural or probable consequence of the Defendant’s act need not be specifically pleaded. It arises by inference of law, and need not, therefore be proved by evidence and may be averred generally………………… Special damage on the other hand is such a loss as the law will not presume to be the consequence of the Defendant’s act, but which depends in part at least, on the special circumstances of the case” ... per Sowemimo (Pp 4-5, paras G-C). (d) A look at the pleadings and evidence of the Claimant reveals that the Claimant neither pleaded nor gave evidence with regards to special damages. There were no particulars and no attempt to prove them. Counsel therefore submitted that even where this Honourable Court holds that the termination is wrongful and unjust, the Court can only consider an award in General damages which in law is nominal. Again With regard to the 2nd, 3rd, 4th and 5th Claims, the Supreme Court has also held in a plethora of cases that even where there is a case of wrongful termination of Employment, the only compensation the Employer owes such Employee is one month salary in lieu of the wrongful termination and any other legitimate entitlements due to him at the time of termination, referring to the case of KATTO V. C.B.N (supra) @ 406 paras D, G-H. The one month salary and any other entitlement are what ordinarily should inure the Claimant as General damages but any sum to be granted him in excess of the above must be pleaded by way of Special damages and proved. Pursuant to the one month salary and entitlement, Parties had agreed that the Claimant had been paid and he received same. There is therefore nothing left for him to collect. iii. The 4th Claim of the Claimant is for this Honourable Court to order the promotion of the Claimant upon re-instatement. Learned counsel submitted that assuming this Honourable Court were to re-instate the Claimant, the condition for promotion of any staff falls within the prerogative of the Defendant as provided for under Article 8.8 of the Claimant’s Exhibit D and it provides thus: Promotion to a higher grade remains the prerogative of Management, which will take into account, available vacancies, demonstrated merit in performance of the present job, indication of potential, skill and ability to assume higher responsibilities. The words of this provision are unambiguous and counsel urged the court to adopt the literal meaning which is to the effect that promotion is the prerogative of the Management of the Defendant. He cited the case of CHIGBU V. TONIMAS NIG. LTD (2006) 9 NWLR (Pt 984) 189 @205 para G. In exercising this prerogative, the Management of the Defendant will consider available vacancies, demonstrated merit in performance of the present job, indication of potential, skill and ability to assume higher responsibilities. He submitted that the above considerations are not within the province of this Honourable Court and in view of the fact that the Claimant had become due for either voluntary retirement or retirement at the discretion of the Defendant at the time of termination, he possesses no ability to assume higher responsibility. Finally, counsel contended that assuming without conceding that the termination was wrongful and that the Claimant’s tenure had not run out, no one can foist a willing employee on an unwilling employer. The implication is that this Honourable Court cannot grant the 2nd and 4th Claims as the Court cannot foist the Claimant on the Defendant, relying on the case of IWUCHUKWU V. NWIZU (supra) @411 paras F-G. In conclusion, counsel stated that it is the Defendants’ case amongst others that: a. The termination was not wrongful and unjust as the procedure laid down in Exhibit D was followed to the letter. b. The test of lawfulness or procedure adopted for the termination of appointment is not in ascertaining the veracity of the offences said to have been committed by the Claimant but a critical appraisal of the manner of termination. c. The Claimant failed to show how the terms of his appointment as contained in Exhibits A & D were breached with regard to his termination. d. The Claimant admitted being guilty of serious offences under cross- examination. One of such is the admission that he received petition against subordinates but did not transmit same to the hierarchy of the Bank (because he feels he can handle the problem). Please see Article 14.5.9 of Exhibit D. e. The Claimant confirmed that he had served for a period over 31 years and therefore falls within the cadre of staff that can be laid off at the discretion of the Defendant. Please refer to Article 8.2.1 of Exhibit D. f. The Claimant confirmed in evidence that he was paid his entitlement after the termination. What he did with the cheque is of no moment. g. The Claimant failed to make case for Special damages and is therefore entitled to General damages assuming his case for wrongful and unjust termination succeeds. Counsel therefore urged the Court to dismiss this Suit with cost. On his own part, the learned counsel for the claimant adopted and argued the issues as formulated and argued by the Defendant. On the first issue, which is ‘Whether the appointment of the claimant in this case was lawfully terminated’, learned counsel stated that the answer to this issue is in the negative. On this point, he agreed with the Defendant’s counsel that a proper evaluation of the manner of termination of the claimant’s appointment will entail an examination of the following exhibits; (1) Exhibit B - Memo from the BDM to Mr. Sylvester Onu. (2) Exhibit B1 — Memo from BDM to Mr. Sylvester Onu. (3) Exhibit B2 — Memo from BDM Enugu to Head, Human Capital Management head quarter. (4) Exhibit D —First Bank Employee Handbook (5) Exhibits L-L6- Petitions from Customers (6) Exhibit M —Memo from Audit Department to the BDM Enugu. (7) Exhibit R — Memo from the Audit to Branch Manager, Afikpo. Learned counsel proceeded that Exhibit D is the First Bank Employee Handbook which could also be referred to as the term of contract between the Defendant and the Claimant. Article 14 of the handbook provides for the disciplinary procedure of employees and he reproduced same hereunder for easy reference: 1. When an employee fails to perform his/her work satisfactorily or commits an act of misconduct or negligence, he/she shall be given a query to explain the circumstances regarding his/her conduct within 48 hours. 2. Further investigations may be carried out on receipt of the reply to the query. 3. Depending on the gravity of the offence, the case could be referred to the Head Office Disciplinary Committee (HODC) or Human Capital Management Committee (HCMDC) or any of the relevant Business Development Office Disciplinary Committees (BDODC) depending on the location/grade of the affected employee. Subsequently the employee may be let off, cautioned verbally, issued caution letter, warned in writing or have his/her employment terminated/summarily dismissed, depending on the decisions of the disciplinary committee(s). 4. Defence at the Disciplinary Committee. Any employee whose case is being tried for the first time at Business Development Office or Head Office levels should be given opportunities to appear before the Disciplinary committee. If the committee is sitting outside the employee’s location, the Bank will bear the employee’s cost of transportation, accommodation and feeding during the visit but subject to approval. 5. Appeal against sanctions. A staff who is sanctioned and not satisfied with the Disciplinary committee’s decision has the right to appeal to Head Office Disciplinary Committee within 3 months of receipt of the letter of sanction and thereafter such appeal will be time barred. Except where there is a clear evidence of the introduction of new facts, after an appeal case has been treated, repeated appeals will not be tolerated. Appeals should not go beyond two hearings. 6. Employees who appeal against Disciplinary Committee’s decision will bear the cast of transportation, accommodation and feeding themselves. The question that readily comes to mind is whether the Defendant in this case had complied with the above provisions. The answer is emphatically No. According to counsel, Paragraphs 1 & 2 of the above provisions were not complied with. Paragraph 1 provides that: When an employee fails to perform his/her work satisfactorily or commits an act of misconduct or negligence, he/she shall be given a query to explain the circumstances regarding his/her conduct within 48 hours. In the instant case, there was no query issued or given to the claimant and thus was not given any opportunity to explain the circumstances regarding any allegations against him, neither was there any reply eliciting further investigation. All what the defendant did was to put the cart before the horse, that is to say, setting up a disciplinary committee without first of all issuing a query and consequently a reply. The decision of the Court of Appeal in Atadi Vs Union Bank of Nigerian Plc (2006) ALL FWLR (pt. 285) 517 is very instructive when it said: In both statutory and private employment, the employer can dismiss in all cases of gross misconduct, provided the employee is given a fair hearing, that is, he was given a query and he submitted a representation for the consideration of the employer. See also Arinze Vs First Bank Plc (2004) All FWLR (pt. 217) 668. Further stressing the importance of fair hearing the court of Appeal in Osumah Vs Edo State Broadcasting Service (2005) ALL FWLR (Pt. 253)773 intoned thus: The right of a person to a fair hearing is so fundamental to our concept of justice that it could neither be waived nor taken away by statute, whether expressly or by implication. On these legal principles counsel referred to paragraphs 8, 9 & 10 of the further statement on oath of the claimant which were never rebutted. Continuing, learned counsel stated that the DW1, the Defendant’s sole witness was asked during cross examination: “Is it necessary to query a person to be suspended” and she answered: “Yes, in this case I do not know if the claimant was queried”. He then opined that it is beyond question that the claimant was not given any query as none was tendered before the court. He continued that in her effort to prove that the Defendant complied with the disciplinary procedure as numerated above, she tendered exhibit ‘M’ which is a memo from internal Audit Department of the Defendant bank to the BDM, Enugu dated the 17th October, 2007 and titled — Branch — Afikpo, Monumental Fraud” directing it to suspend the claimant until the determination of his case. He added that of note is that this said letter was not directed to the claimant and therefore cannot by any stretch of imagination be called a query. It was in consequence of this said letter that exhibit B (a Memo from the BDM Enugu suspending the claimant from duty) was written to the claimant. That from the above antecedents, it is clear, as crystal, that the claimant was not given any query; neither did he do any reply upon which any investigation could have been predicated. Instead, he was, served with a suspension letter (Exhibit B) without more. That again, the object of disciplinary sanctions is to improve an employee’s performance, so that he can remain a valued and useful employee and not to give vent to management frustrations. This calls for fairness in the process of both the investigation and placement of sanctions on employees. Thus, where an employee is able to prove to the satisfaction of the court that management has treated other employees in more considerate manner, the imposition of a harsher sanction is likely to be declared null and void. See Eche Vs State Education Commission (1983) I FNLR 381. According to learned counsel, in the instant case, the claimant was not only made a scapegoat, he was used to ventilate management’s frustrations and anger. Thus, Exhibit R is the report of a full internal audit of the claimant’s Branch which certified the Branch cum the claimant as good and clean. Barely two months after, the claimant was suspended from office on account of a petition which emanated from an anonymous whistle blower, accusing the claimant of having abused the profit and loss account of the bank and in a summersault, the audit department issued exhibit M, directing the BDM Enugu to suspend the claimant from office without more. The questions that may arise are: (1) Who is this anonymous whistle blower? (2) Is this whistle Blower another branch of the Defendant’s bank or merely an instrument for witch hunting the unwanted and discriminated staff? (3) Was the claimant ever confronted with the petition of this whistle blower? The answers, to the above questions would expose the unfairness and the very opprobrious process of terminating the claimant’s employment. That up till the time of hearing/trial of this case, the claimant has not yet been confronted with the details of his abuse of the profit and loss account of the bank. None is before this court, counsel stated. He submitted therefore that since there is nothing before this court to show the details of abuse of the profit and loss account by the claimant, and especially as that allegation is coming from an anonymous whistle blower the suspension cum termination of the claimant is grossly unlawful and unfounded and he urged the court to so hold. Continuing, counsel stated that another reason, according to DW1, why the claimant’s appointment was terminated is because of various petitions against him while he was the Branch Manager, Afikpo and in proof of this assertion, she tendered exhibits L-L6 evidencing the various petitions against the claimant. To counsel, Exhibits L-L6 are petitions written to (not against) the Branch Manager (the Claimant) against one Mr. Ebere Okere, an officer of the Defendant’s bank, complaining about his fraudulent dispositions, towards them. The allegations contained in exhibits L-L6 do not show any complicity by the claimant neither did DW1 in her evidence ever allude to any such complicity. One wonders therefore why the claimant’s termination should be hinged on the said exhibits, for according to DW1, “the claimant was terminated for two reasons: there were various petitions against him while he was manager Afikpo Branch, and abuse of profit and loss account.” Furthermore, that the petitions were those written by customers. Exhibits L-L6 are all addressed to the Bank Manager Afikpo. The claimant was the Branch Manager at that time. In trying, to justify the claimant’s termination of appointment on account of exhibits L-L6, the Defendant in his address stated that Article 14:59 of exhibit D clearly provides that a staff can be sacked upon failure to report promptly any irregularity on the part of any other staff or non-staff and counsel submitted that that submission was grossly misconceived as that provision of Exhibit D is not applicable in the instant case. What more, natural justice demands that one cannot be tried twice for one offence. Exhibit J is a letter which let the claimant off the hook on the allegation contained in Exhibits L-L6. It is titled; RE: APPEAL AGAINST SUMMARY DISMISSAL BY MR. EBERE S. OKERE (EX-STAFF) and dated November, 2007. He submitted therefore that the claimant’s termination of appointment on account of exhibits L-L6 is grossly unfair as it is unlawful having been exonerated on that account by exhibit J. Again, the Defendant violated the provisions of the Article 14.4 of exhibit D in the whole process of suspending the claimant from duty and eventually terminating his appointment. That provision is reproduced hereunder: 14.4: An employee may be placed on suspension with pay (1/2 basic salary and full housing, utility, transport allowance and medical facilities). The period of suspension shall range from one month to six months as may be determined and such period shall be recognized in determining the length of employment with the bank. Other conditions retarding suspension are: • If any employee is suspected of dishonesty or any other serious misconduct, he/she will be suspended from duty for a period not exceeding six months during which investigations shall be concluded. • If the investigations are not conduced within six months, the employee shall remain suspended until such a time that the investigations are concluded. • If after investigations, he/she is exonerated, he/she shall be recalled, the balance of his basic salary and other entitlement shall be paid from the date of suspension. If however, the employee is found guilty he/she shall be dealt with in accordance with the bank’s disciplinary procedures. According to counsel, the imp1ications of the above provisions are: (1) That while on suspension, such employee remains suspended until investigations are concluded. (2) If investigations are not concluded within six months the employee remains suspended until such extended period when investigation shall be concluded. (3) That if a suspended employee is eventually found guilty, he/she shall be dealt with accordance with the bank’s disciplinary procedures. That in the instant case the claimant was recalled to duty during his suspension as per exhibit B1 with the clause: “While the above matter is being processed for determination”. Apart from the fact that the procedure adopted by the Defendant in the instant case runs foul of Article 14.4 of exhibit D, it also created an estoppel against the Defendant in justification of which exhibit B2 remarked in its first paragraph thus: The above staff who is the manager of Afikpo Branch was recalled to duty on November 12, 2007 as his suspension was not regular. The whole process is like a charade and lacked the least modicum of administrative procedure. The whole process is topsy-turvy and smacked of a premeditated arrangement to unseat the claimant from office. Under cross examination, DW1 was asked if it was the Defendant’s administrative procedure to suspend a staff, recall him to office and then invite him to a disciplinary panel (which was the position in the case) and she answered thus: Our administrative procedure is this: when a staff is suspended, it is normally indicated on the suspension letter that the staff would be on suspension, until the matter is determined. From the above explanation, it would appear that any employee who was suspended from duty can never resume duty until his case has been determined. Anything to the contrary is not in compliance with the provisions of Article 14.4 of Exhibit D. Another conflation of Article 14.4 of Exhibit D is that if the suspended em1ployee is found guilty, he/she would be dealt with in accordance with disciplinary procedure of the bank. It has been the claimant’s contention that the defendant never complied with the bank’s disciplinary procedures in the whole process of terminating his employment. DW1 admitted during cross examination that before the claimant’s recall from suspension, he was never issued with any query. What is more intriguing is the fact that DW1 further admitted that the suspension of the claimant was on account of a letter from an “anonymous whistle blower’. Thus the claimant has been consistent in contending that he was never issued any query neither was he ever confronted with the said letter from the anonymous whistle blower. On the whole, it is learned counsel’s contention that the whole process of the claimant’s termination of appointment was wrongful and therefore unlawful. i. Firstly, Article 14 of the Employee Handbook (Exhibit D) provides that: When an employee fails to perform his/her work satisfactorily or commits an act of misconduct or negligence, he/she shall be given a query to explain the circumstances regarding his/her conduct within 48 hours. In the instant case, no such query was given to the claimant and none was ever tendered in court. Exhibits M&N cannot by any stretch of imagination be construed to represent a query. While exhibit M is a memo from the Internal Audit Department to the Head, Human Capital Management directing it to suspend the claimant, exhibit N is merely a caution letter. Therefore in the absence of any query issued to the claimant and in the absence of any reply thereto, the defendant has not complied with the laid down procedure. See Atadi Vs Union Bank of Nigeria Plc (supra); Osumah Vs Edo State Broadcasting Service (supra); Arinze Vs First Bank Plc (2004) ALL FWLR (pt 217)668. ii. Again, Article 14 of Exhibit D further provides that investigations may be carried out on receipt of the reply to the query. In the instant case, since there was no query, there was therefore no reply upon which any investigation could be predicated. Instead the claimant was slammed with a suspension letter. iii. Suspension being a very serious matter, it behoves on the defendant that before such a drastic measure is taken against a staff, a query and a reply should have ensued. This assertion was corroborated, when DW1 was asked, is it necessary to query a person to be suspended? And she answered “yes, in this case, I do not know if the claimant was queried”. iv. In the instant case, the claimant was suspended, recalled to duty and was invited to a disciplinary panel. All these without a query and or a reply. DW1 under cross examination said about this procedure: I cannot say that it is a wrong procedure as everything depends on the management’s discretion. To the learned counsel, everything cannot depend on the management’s discretion as the disciplinary procedure of the defendant bank has been provided in Article 14 of exhibit D which provisions should be strictly construed against the defendant. In the above circumstances counsel therefore urged the Court to find in favour of the claimant on this issue. On issue Issue 2: Whether the claimant is entitled to any of the claims sought in this suit, counsel stated that the claimant in paragraph 5 of his statement of claim averred thus: By the confirmation of the plaintiff’s appointment, his employment in the defendant’s bank was intended to continue until he attains the age of 60 years or served the bank for 35 years, whichever is earlier. And the defendant in her paragraph 4 of statement of defence averred thus: In answer to paragraph 5 of the statement of claim, the defendant states that the plaintiff’s employment with the defendant bank was to subsist until he attains the age of 60 years or served the Bank for 35 years whichever is earlier (if he did not breach the terms of his engagement and service with the defendant bank). Again paragraph 8.12:1 of the employee Handbook (exhibit D) states that the compulsory retirement age for every employee is 60 years or 35 years in service. The claimant is not an exception. Having agreed thus far, and having shown that the claimant’s employment with the defendant bank was not properly or lawfully terminated, the question then is what are the remedies available to the claimant given the saying “ubi jus ibi remedium” (where there is a right, there is a remedy). The claimant claimant’s in this suit, against the defendant as follows: (a) A declaration of court that the termination of the plaintiff’s appointment on 8th April, 2008 was wrongful and unjustified. (b) An order of court reinstating the plaintiff to his duty post as though he had never been terminated. (c) An order of court directing the defendant to pay to the plaintiff all his salaries, allowances and or other perquisites accruable to his office from the date of the purported termination until judgment is delivered. (d) An order of court that the plaintiff is entitled to all the promotions which he would have had but for the purported termination. (e) Alternatively, N50,000,000.00 being special and general damages for wrongful termination of the plaintiff’s appointment which includes his gratuity. Learned counsel then addressed these remedies seriatim. On the relief for a declaration of court that the termination of the claimant’s appointment on 8th April, 2008 was wrongful and unjustified, it would appear that it is upon this relief that all other reliefs in this suit revolve, for if the court finds that the claimant’s appointment was unlawfully and unjustifiably terminated, then the court goes ahead to consider what remedies are available to the claimant. Based on claimant’s submissions and demonstrations in issue 1 above, he has been able to establish on preponderance of evidence, that the claimant’s appointment was unlawfully terminated, and so he urges the court to so hold. The claimant’s reliefs b, c & d can be taken together as they are complementary and interrelated. Although the general principle is that no one can foist a willing employee on an unwilling employer but that principle must be taken with a pinch of the salt as it does not confer a blank cheque on the employer to throw away an employee out of employment at his whims and caprices. In the instant case, the claimant and the defendant are unanimous in their pleadings to the effect that the claimant shall remain in his employment until he attains the age of 60 years or until he puts in 35 years of service, whichever is earlier. It would appear that courts are more inclined to grant damages as relief where there is evidence of situation and circumstances which make it impossible to order reinstatement. In the instant case, situation and circumstances do not make it possible for this court to order for reinstatement because the claimant was due to be lawfully retired from service in December, 2012 which situation also renders reliefs b, c and d redundant. It would therefore represent an academic exercise going to argue the propriety or otherwise of this court granting those reliefs. However, the Defendant argued that the claimant is not entitled to reliefs b, c & d on the ground that the defendant lawfully exercised her discretion as provided in Art. 8.12.1 of Exhibit D which entitles her the discretion to terminate an employee’s appointment upon attainment of 30 years in service, and we dare say that, that submission is grossly misconceived, unrepentantly misleading, untenable in this circumstance and does not present the intendment of that provision. The circumstances surrounding the termination of the claimant did not suggest that the defendant was ever exercising her discretion under Article 8.12.1 of Exhibit D. The whole saga emanated from a whistle blower, then suspension of the claimant, his recall to duty on half salary, invitation to a disciplinary panel and ultimately, his termination. It is therefore illogical and utterly unreasonable to suggest that the Defendant was exercising her discretion under Art 8.12.1 of Exhibit D. That in the event of reliefs b, c & d having been overtaken by circumstances which make it impossible for this court to grant them, the claimant alternatively claims N50,000,000.00 against the defendant as special and general damages. Learned counsel then submitted that where a contract of employment is for a fixed period (as in the instant case) and it is wrongfully terminated before the end of the fixed term, the salary for the unexpired period of employment are recoverable as damages, relying on the case of Governor Ekiti State Vs Ojo (2006) ALL FWLR (pt. 331) 1218. This was also corroborated by the defendant when it reproduced in part, the decision of the supreme court in Ihezukwu Vs University of Jos (1990) NWLR (pt. 146) 598 © 610, also reproduced hereunder: It is therefore my conclusion that both the trial court and the court of Appeal were right when they refused to reinstate the Appellant. The normal measure of damages recoverable by an employee whose contract has been wrongfully terminated is the amount he would have earned under the contract for the period until the employer could have lawfully terminated it. In the instant case, the claimant’s period of service has been fixed and the earliest time when his employment could have lawfully been terminated is in December, 2012. Having thus been terminated in 2008, the claimant has been subjected, by this singular act, to loss of income, loss of dignity and reputation, emotional trauma and psychological stress, some of which injuries cannot be quantified in monetary terms. Thus, in Governor, Ekiti State Vs Ojo supra, the respondents were appointed Chairman and Members of the local government service Commission of Ekiti State for an initial term of 3 years with effect from 16th December, 1999, which appointments were subsequently reviewed for another term of 3 years with effect from 16th December, 20O. On 2nd June, 2003, the 1st appellant dissolved the boards of all parastatals, agencies and commissions in Ekiti State The respondents, instituted this action by originating summons at Ekiti State High Court challenging their purported removal from office and claiming reinstatement or in the alternative payment of their total remuneration due to them up till and including 15th December, 2005 for premature removal from office. At the conclusion of trial, the trial court granted the declarations sought by the respondents. Being dissatisfied, the appellants appealed to the court of appeal. Dismissing the appeal, the Appeal Court held inter alia: A person appointed to a post for a term by statute has right to serve out the statutory term of his appointment. He cannot be removed from the office by any person during the period except for misconduct or when the master, body or institution he is appointed to serve dies or, ceases to exist See also Obeta Vs Okpe (1996)9 NWLR (pt473)401. Learned counsel stated that the defendant made a heavy weather of the fact that the claimant did not plead any special damages and he referred the court to paragraphs 14, 15 and 19 of the claimant’s statement on oath. He also referred the court to exhibit H. In a case of wrongful termination of appointment the claimant is required to establish: (a) That he was an employee of the defendant. (b) How he was appointed and the terms and conditions of his appointment. (c) The circumstances under which his appointment can be terminated, etc. He referred to N.NP.C Vs Olagbaju (2006) ALL FWLR (pt334) 1855. All these, counsel submitted, the claimant has shown in his evidence for in this case nothing can be more special than the claimant’s salary and wages. That during trial, the claimant tendered exhibit ‘H’ which is his pay advice as manager step 3 showing his salary or wages as at the time of his wrongful termination. His basic salary for one month is N555, 607.00 which shall be calculated for 4 years and 9 months covering the period from 8th April, 2008 to 3rd December, 2012 which is 31, 669, 599.00 as special damages. Concluding, counsel stated that having shown that the claimant’s termination of appointment was wrongful and not in compliance with the laid down procedure of the defendant bank, and circumstances not making it possible for the court to make an order of reinstatement, and the claimant’s appointment being one of a fixed period of time, he therefore urges the court to grant the claim of damages as follows: Salaries from April, 2008 to December, 2012 @ N555,607.00 which is N31,669,599.00 as special damages and N18,000,000.00 as general damages. There was no reply on points of law filed by the Defendant. I have carefully considered the processes filed, evidence led, as well as arguments and submissions of the parties in this case. The facts of the case briefly put are that the Claimant was employed by the Defendant on the 9th day of December, 1977. He served the defendant up until the 8th of April, 2008, when his appointment was terminated. The Claimant rose to the rank of branch manager of Afikpo Branch in 2005. The Claimant pleaded further that by a letter a letter dated 24th day of October, 2007 he was suspended from duty by the defendant. Then by another letter of 12th November, 2007 he was recalled to his duty post. The recall of the claimant did not lead to the restoration of his full salary and entitlements but was even terminated on 8th April, 2008. He pleaded that he had served the Defendant for a total of 31 years. On its own part, the Defendant pleaded that the claimant was terminated on 8th day of April, 2008 but that between 2006 and 2008 when the appointment was terminated he received queries with regard to petitions written against him. He was also suspended ad recalled. The Defendant further pleaded that the Claimant was terminated because of his involvement in unethical practices in the Afikpo branch. According to the Defendant, the Claimant was given fair hearing before his termination through the Disciplinary Committee of the Defendant. Furthermore, after the termination, the Defendant pleaded further that the Claimant was given the opportunity of appealing against the termination which he seized but was not successful as the appeal was considered as lacking in merit. Having considered the processes, evidence led as well as arguments and submissions of the parties, the issues for determination are as follows: 1. Whether the appointment of the Claimant in this case was lawfully terminated by the Defendant? 2. Whether the Plaintiff is entitled to any of the Claims sought in this Suit? On the first issue, the Claimant’s contention is that his employment was wrongfully terminated by the defendant. In proof of this contention he drew the court’s attention to Exhibits B, B1, B2, D, L-L6, M and R all placed before the Honourable Court. He has relied particularly on the procedure stipulated in paragraph 14 of Exhibit D, the Employee Handbook of the Defendant which is the Conditions of Service governing the relationship between the parties. The steps to be taken according to the said paragraph 14 of Exhibit D are as follows: - When an employee fails to perform his/her work satisfactorily or commits an act of misconduct or negligence, he/she shall be given a query to explain the circumstances regarding his/her conduct within 48 hours. - Further investigations may be carried out on receipt of the reply to the query. - Depending on the gravity of the offence, the case could be referred to the Head Office Disciplinary Committee (HODC) or Human Capital Management Committee (HCMDC) or any of the relevant Business Development Office Disciplinary Committees (BDODC) depending on the location/grade of the affected employee. Subsequently the employee may be let off, cautioned verbally, issued caution letter, warned in writing or have his/her employment terminated/summarily dismissed, depending on the decisions of the disciplinary committee(s). - Defence at the Disciplinary Committee. Any employee whose case is being tried for the first time at Business Development Office or Head Office levels should be given opportunities to appear before the Disciplinary committee. If the committee is sitting outside the employee’s location, the Bank will bear the employee’s cost of transportation, accommodation and feeding during the visit but subject to approval. - Appeal against sanctions. A staff who is sanctioned and not satisfied with the Disciplinary committee’s decision has the right to appeal to Head Office Disciplinary Committee within 3 months of receipt of the letter of sanction and thereafter such appeal will be time barred. Except where there is a clear evidence of the introduction of new facts, after an appeal case has been treated, repeated appeals will not be tolerated. Appeals should not go beyond two hearings. - Employees who appeal against Disciplinary Committee’s decision will bear the cast of transportation, accommodation and feeding themselves. According to the Claimant there is nothing before the court to show that he has been given any query in compliance with the first and second stipulations above. Thus there was no query given and therefore no opportunity to explain the circumstances regarding any allegations against him. However, on its own part the defendant maintained that all the stipulations have been complied with by the Defendant in relation to the treatment of the case of the claimant. The submission is hinged on the fact that the claimant was given the opportunity to appear before the Disciplinary panel of the Defendant. Learned counsel for the Defendant seems to have simply relied on the fact that a Disciplinary Panel was put in place to consider the case of the Claimant and that should be sufficient compliance with the stipulations in Paragraph 14 of Exhibit D, the Conditions of Service. The question here though is whether there has indeed been compliance with the stipulations above. These stipulations are clearly to the effect that where allegations are made against an employee the disciplinary process is kick-started with a query issued to him, to which he is expected to explain the circumstances of his conduct within 48 hours. Thereafter further investigation may be conducted upon receipt of the reply to the query. Then the process continues depending upon the gravity of the allegation of misconduct that is leveled against the employee. In the instant case, the case of the claimant is that no query was issued to him in accordance with the terms of paragraph 14 of Conditions of service. He then placed before the court Exhibit B which is a letter of suspension dated 24th October, 2007. The said suspension was however lifted by a letter dated 27th November, 2007, Exhibit B1. The point here is that the suspension was effected in connection with the claimant’s alleged involvement in the abuse of P & L in Afikpo branch through splitting and lowering of bills to evade superior authority. The letter lifting the suspension did not absolve the claimant but rather stated that the matter was being processed for determination. This was further backed up by a letter dated January 21, 2008, Exhibit B2 tendered by the Claimant which relates to the payment of his half salary and December 2007 quarterly payment. After this communication the next letter was that of termination, Exhibit C dated April 8, 2008. The critical point about this letter is that it did not mention the reason why the claimant was terminated. It simply stated that his services were no longer required and he would be paid his emoluments as to the date of the notice, i.e. April 8, 2008 as well as one month’s salary in lieu of notice. Therefore whereas there was a process in motion for disciplinary measure against the Claimant, the Defendant chose to terminate by giving him one month’s salary in lieu of notice. The documents now stated form the cornerstone of the claimant’s case. On the side of the Defendant, reliance is placed on the Exhibits L1-L6, M, N, O, P, P1, Q and Q1 to argue that the termination of the claimant is in compliance with the stipulations of the Conditions of service, Exhibit D. It referred to both the letter of appointment, Exhibit, A and the Conditions of Service Exhibit D. The learned counsel for the Defendant specifically referred to Article 8.10 C of the Conditions of Service, Exhibit D which states that “Notwithstanding the above provisions, any employee who is guilty of gross misconduct shall be liable to summary dismissal”. Learned counsel then further anchored his defence on the disciplinary procedure as stipulated in Paragraph 14 earlier reproduced. Although the Defendant has maintained that the due process stipulated in Paragraph 14 of the Conditions of Service, Exhibit D, has been complied with, there is nothing before the court to show that the Claimant was in fact given query to which he answered in connection with the allegations that led to the suspension and the eventual termination. This is a clear violation of the stipulation of Paragraph 14 of Exhibit D which I earlier reproduced. The petitions allegedly made against the Claimant have nowhere been shown by the Defendant to have been forwarded to him or asked to reply to them in accordance with the Conditions of his employment. There is nothing to show that a query was issued to him over the petitions or his handling of them. The defence of the defendant is that he had appeared before the disciplinary panels set up by it and that his grouse was only that he did not defend himself properly before them. He relied on paragraphs 14, 15 and 17 of the Statement on oath of the DW1. However, the Defendant’s stance as reflected in the letter of termination clearly shows that the Defendant was simply terminating the Claimant’s employment following the stipulation in paragraph 8.10 A of the Conditions of Service, Exhibit D. This paragraph states that either party to the contract of employment could bring it to an end by giving the appropriate notice, in the case of the claimant, for one month, or the payment of one month’s salary in lieu of notice. This in a way satisfies the requirement of the conditions of service, and where it is done, the employer does not need to provide any reason for the termination, because in a master and servant relationship an employee can be terminated for good, bad or no reason at all. See Layade vs Panalpina World Trans. Nig. Ltd (1996), supra, cited and relied upon by the Defendant. See also Chief Idoniboye-Obu vs NNPC (2003) LPELR-1426(SC) p. 22 paras E-F, Gabriel Ativie vs Kabelmetal Nig Limited (2008) LPELR-591 (SC) p. 21, para A. and Isheno vs Julius Berger (2008) 6 NWLR (Pt. 1048) 582. Looking at the issue for determination the Claimant’s view that the Defendant had failed to give him the appropriate query before initiating the disciplinary process was in violation of the Conditions of Service, Exhibit D, must be viewed against the background of the fact that the same Conditions of Service have provided for the right of either party to terminate the employment with the appropriate notice or payment of salary in lieu of notice. And where the Claimant as in this case, is given salary in lieu of notice, there is no way that the court can declare such termination wrongful. It is only when the Claimant is dismissed on allegation of misconduct that the Defendant must give reason for the dismissal and prove that misconduct to the satisfaction of the court. See the case of Institute of Health Ahmadu Bello University Hospital Management Board vs Mrs Jummai R. I. Anyip (2011) LPELR-151(SC) p. 21 paras. A-C. where the Supreme Court held per Chukwuma-Eneh JSC 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 it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more. In the circumstance it is my view and I so find that the claimant’s termination was in accordance with his terms of employment as provided in paragraph 8.10 A of Exhibit D, the Conditions of Service of the Defendant. Therefore the first issue is resolved in favour of the Defendant. The second issue is whether the Claimant is entitled to any of the Claims sought in this Suit. The Claims have been earlier reproduced in this Judgment. The Claimant himself has submitted that reliefs b, c and d are not grantable by the Honourable Court in view of the circumstances of the case. They are basically predicated on reinstatement of the claimant back into his employment by the Defendant. I will come back to them later. I shall start with the first relief which is for an order of declaration that the termination of the employment of the Claimant was wrongful and unjustified. It seems to me that the Claimant was predicating his claims on the fact that his employment was to run until he reached the age of 60 years or has served for 35 years whichever comes first. He pointed out that as at the time of the termination, 8th day of April, 2008 he had served for 31 years and was having 4 years to serve before retirement. The claimant himself referred to paragraph 8.12.1 of Exhibit D, the employee handbook, which states the retirement age of every worker at 60 years or 35 years of service. The learned claimant’s counsel has submitted that his contract of employment with the defendant is one for a fixed period. His only basis for that submission apparently is the stipulation in paragraph 8.12.1 of the Conditions of Service, Exhibit D. I must state here straight away that there is a misconception on the part of learned counsel to the Claimant. The provisions relied upon by him relate to retirement and cannot be said to amount to a contract of fixed term. A fixed term contract is one that is not to last up to retirement. The learned author Femi Aborishade in his recent book titled “Determination of Contract of Employment in Nigeria, South Africa, Zimbabwe” published by Humanitas Consult Ltd & Centre for Labour Studies (CLS), 2005, pages 173 to 174 explained fixed term contract in relation to how it is determined as follows: Where the contract of service is for a fixed term, the Supreme Court in S.S. Co. Ltd vs Afropak (Nig) Ltd (2012) 1 NILR 156 at 189-190 paras. E-D, the court held that: The 2nd situation is where the contract of service is for a fixed term. This is where the term of Service is pre-determined at the commencement of the contract. Notice may or may not be in the contemplation of the parties. The proposition here is that in such a contract the employee cannot be removed during the period of the term contracted except for misconduct or where the employer dies. See Igbe vs Gov Bendel State (1983) 2 SC 14 (1983) 1 SCLR 73. Where the contract of an employee is determined before the expiration of the term agreed, the employer shall be made to pay the employee the full salary he would have earned for the unexpired period of his fixed contractual term-see: SWISS Nig. Wood Industries Ltd vs Bogo (1970) NCLR 423. From this it is clear that a contract is said to be for a fixed term where at its commencement the period it would last is known and not left till retirement. Therefore the claimant’s contract in the instant case is not one for a fixed term which would have made it possible for him to allege wrongful termination before the expiration of the fixed term. In any event in this case, the court having found that the termination of the Claimant’s employment was not wrongful, he is not entitled to the declaration sought as relief A. On the reliefs b, c and d, it has to be pointed out that the reliefs are essentially orders of court that would have become grantable following the success of relief A. However, the position of the law in relation to master and servant cases, the category to which the instant case belongs, the law is that even where there is wrongful termination of employment the court cannot foist a willing employee on an unwilling employer. See the case of Adedayo Sunday Joseph & Ors vs Kwara State Polytechnic & Ors (2013) LPELR-21398 (CA), per Galinje JCA, the Court of Appeal held as follows: In the instant case, the contract of employment as reflected in the letters of employment of the Appellants provide for three months’ notice or three months’ salary in lieu of notice where any of the parties wishes to terminate the contract. I therefore agree with the submission of the learned senior counsel for the Respondent that the trial court cannot reinstate a dismissed staff in a private contract of employment except of course the contract agreement as between the parties expressly says so. It is not the business of the court to make a contract between the parties but to give effect to what had been agreed upon by the parties themselves. It is trite that the court cannot force a willing employee on an unwilling employer. The claimant cannot therefore be entitled to order of reinstatement, payment of salaries, allowances and promotion, which are the reliefs sought by the claimant. There is the last relief “e” sought, which is a claim for special and general damages but which also is predicated on the success of the Claimant’s case that his employment was wrongfully terminated and unjustified. With the finding that the employment was not wrongfully terminated, the claim cannot succeed. The position of the law is that even where the employment of an employee is held to be wrongfully terminated, special damages can be granted where they have been specifically pleaded and strictly proved. See British Airways vs Mr P. O. Atoyebi (2014)