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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: November 17, 2014 SUIT NO. NICN/PHC/66/2013 Between Apostle Samuel Amakiri Mandah - Claimant And 1. The Registered Trustees of the Nigerian Union of Teachers 2. Michael Alogba Olukoya (National President Nigeria Union of Teachers) 3. Obong Ikpe Jonny Obong (Secretary General, Nigeria Union of Teachers) 4. Nasir Idris (National Treasurer, Nigeria Union of Teachers) Defendants 5. Chief Moses Adiela (State Chairman, Nigeria Union of Teachers, Rivers State wing) 6. Mr. Okechukwu Nwachukwu (State Secretary, Nigeria Union of Teachers, Rivers State wing) 7. Mr. Theophilus Worlu (State Treasurer, Nigeria Union of Teachers, Rivers State wing) Representation: Cletus Iroha for the Claimant John Nwokwu for the 1st, 2nd, 3rd, 4th and 6th Defendants JUDGMENT The Claimant filed this action on the 21st day of May 2013, seeking the following reliefs against the defendant: 1. A DECLARATION that the dismissal of the Claimant from the employment of the Nigeria Union of Teachers vide Letter dated 2/10/2012 on the basis of commission of crime is wrongful. 2. A DECLARATION that the dismissal of the Claimant from the employment of the Nigeria Union of Teachers vide Letter dated 2/10/2012 is without fair hearing and against the procedure of the Claimant’s contract of employment and is therefore null and void. 3. A DECLARATION of Court to the effect that the Claimant is entitled to all his outstanding arrears of salary and other entitlements due and payable by the Defendants/the Nigeria Union of Teachers arising from the contract of employment: Firstly from June-July 2012 amounting to N432,760.32 and thereafter, August 2012 at N216,380.16 per month till the month of judgment, or his employment is lawfully/rightfully terminated (whichever one is first in time). 4. A DECLARATION of Court that the dismissal letter issued by the Defendants to the Claimant and dated 2/10/2012 is libelous in substance to the person of the Claimant. 5. An ORDER OF COURT directing the Defendants/Nigeria Union of Teachers to publish a retraction of the libelous contents of the dismissal letter to the extent of the allegation of commission of crime to wit: MISAPPROPRIATION and UNLAWFUL UTILIZATION OF N29,750,000.00 and render newspaper published apology to the Claimant. 6. GENERAL DAMAGES in the sum of N10,000,000.00. Along with the Complaint, the Claimant filed Statement of Claim, List of witnesses, Witness’s deposition on oath, list of documents and copies of documents to be relied upon at the trial. The 1st, 2nd, 3rd, 4th and 6th defendants on the 23rd day of July 2013, entered appearance vide a motion for extension of time, and filed a Statement of Defence and Counter-Claim, Witness’s deposition on oath, List of Witnesses, list of documents and copies of documents to be relied upon at the trial. These were all deemed as properly filed and served by order of court on the 25th day of September 2013. The 1st – 4th & 6th Defendants Counter Claimed against the Claimant as follows: a. A DECLARATION that the Defendant to the Counter Claim is indebted to the Counter Claimants to the tune of N29,317,239.68 being the sum of N29,750,000.00 embezzled by the Defendant to the Counter Claim less the sum of N432,760.32 being his two months’ salary for the months of June and July, 2012. b. N29,317,239.68 being special damages for the loss suffered by the Counter Claimants in consequence of the acts of corruption and or embezzlement by the Defendant to the Counter Claim. c. Interest on the said sum of N29,317,239.68 at the prevailing lending rate by commercial banks until judgment and thereafter at 10 percent per annum until the judgment debt is liquidated. On the 4th day of October 2013, the Claimant, in reaction to the defendant’s statement of defence and counterclaim, filed a reply and defence to counterclaim along with a further statement on oath and additional documents to be relied upon at the trial. Hearing commenced on the 4th day of November 2013. The parties fielded a witness each. The Claimant testified for himself as CW1 while Okechukwu Nwachukwu, the State Secretary of the Nigeria Union of Teachers, Rivers State Chapter, testified as DW1. Hearing was concluded on the 25th day of February 2014, and parties were ordered to file their written addresses in accordance with the rules of this court. The final written address of the 1st, 2nd, 3rd, 4th and 6th defendants was filed vide a motion for extension of time on the 7th day of May 2014. This was deemed filed and served by the order of court on the 23rd day of June 2014. The Claimant’s written address was filed on the 7th day of August 2014, and the 1st, 2nd, 3rd, 4th and 6th defendants filed their reply on points of law vide a motion for extension of time on the 22nd day of September 2014. This was deemed duly filed and served by order of court on the 25th day of September. On the same day, counsel on both sides duly adopted their various addresses. The 5th and 7th defendants did not file any process all through. The final written address of the 1st, 2nd, 3rd, 4th and 6th defendants filed on the 7th day of May 2014 raised the following two (2) issues for the determination of the court: a. Whether the termination of the employment of the Claimant in the circumstances of this case, in line with the Constitution of NUT, the Staff Condition of Service & Financial instructions of NUT is wrongful. b. Whether the 1st Defendant is not entitled to the counter claim sought against the Claimant. In arguing issue one whether the termination of the employment of the Claimant in the circumstances of this case, in line with the Constitution of NUT, the staff Condition of Service & Financial instructions of NUT is wrongful, it was the submission of counsel to the 1st, 2nd, 3rd, 4th and 6th defendants (whom I will hereinafter simply refer to as the defendants) that the law is clear on the point that where an employee’s contract of service stipulates a procedure to be followed in termination of his employment, that procedure must be complied with. On this point, reference was made to the decision of this Court in the case of FLRAPSSA vs. MBNL (2010) 19 NLLR (PART 53) 175 at 211-212, where it was clearly held that the Court will not interfere with termination where it was done in compliance with administrative procedure and the employee’s conditions of service. Counsel to the defendants submitted that the 1st Defendant’s Constitution and staff conditions of service provides for disciplinary procedure to be followed by the Defendants against any employee who contravenes the company’s rules and regulation which includes corruption and fraud. He referred the court to the NUT staff Conditions of Service dated 11th November 2008 and NUT Constitution as amended in 2000 marked EXHIBITS C6 and C7 respectively. Paragraph 11.3.2 of the NUT Staff Conditions of Service (Exhibit C6) provides: whenever in the opinion of the secretary general or the secretary in the state as the case may be, a prima facie case of misconduct has been made against a staff and it is necessary to investigate the matter further with a view to determining the guilt or otherwise for appropriate disciplinary action, the staff may be suspended pending the determination of his/her case, subject to the payment of half salary during the period of suspension. Paragraph 11.8.1 of the NUT staff Conditions of Service provides that: Whenever any staff whose character is questionable may have his/her appointment terminated by the National Executive Council or by the State Wing Council. By Paragraph 11.8.2, a staff of the union may also be summarily dismissed on the following ground: (c) Misconduct and/or corruption whether or not in relation with the performances of his/her duties in the union. By Paragraph 11.9.2- the appointment of a confirmed staff shall not be terminated until he/she has been given opportunity of submitting representation to the Disciplinary Authority. Article 29 of the NUT Constitution as amended in 2000 (Exhibit C7) provides that: (1) Any member of the Union may be expelled or may have his membership suspended if in the opinion of the National Executive Council, such a member has been found guilty of the following: a. Sabotage or anti-union activities. b. Conduct prejudicial to the interest of the union h. Misappropriation of funds or being a party to any fraud against the union. The above provision shows that the Executive reserves the right to discipline any staffs who is guilty of the offences mentioned above. An employee who contravenes any of the laid down rules/regulation will be liable to suspension or dismissal depending on the degree of the misconduct. Hence by the staff handbook governing the Claimant’s employment, conditions of service and the constitution referred to in paragraphs 3.0.6, 3.0.7, 3.0.8, and 3.0.9 above clearly made the issue of gross misconduct and fraud serious infractions that lead to termination. The disciplinary procedure provided by the handbook is as follows: i) Where such fraud is suspected, the secretary will set up the National Executive Committee who will call for the response of the person involved and may suspend or dismiss person found guilty. Counsel submitted that the Claimant’s employment was terminated as a result of fraud and misappropriation of the 1st Defendant. He referred the Court to the query Exhibit C9 and the response of the Claimant in Exhibit D1, and the Claimant under cross examination categorically state that: ‘I attended the meeting for which Exhibit C15. The subject matter was for the trustees & accountants to explain our monetary transactions of the dues, to the Head Office. That was done in the meeting…’ ‘I have never been issued a query. I replied to the last query I was issued. I signed the reply. That is Exhibit C9. My name is shown as having received N3m. the Chairman assigned the money to me for the monthly running of the office.’ It was the submission of Counsel that by the said employee’s condition of service with the Claimant as contained in the staff handbook reproduced above, an employee’s employment can be terminated for fraud and/or gross misconduct, the Defendant has a duty to ensure fair hearing by constituting a committee to investigate the act and make recommendation. He referred to the case of ARINZE vs. FIRST BANK OF NIGERIA (2000) 1NWLR (Pt. 639) 78 the Supreme Court held that in cases of misconduct bordering on criminality, all that is required of an employer confronting him with the accusation made against him and requiring him to defend himself. It is therefore not in disputed whether the employer can dismiss his employee but the question focused on fair hearing. Having followed the above procedure prior to the termination of the Claimant’s employment, there was no basis for the Claimant to complain about the process which he equally admitted that he was invited to shed light on what happened and he made a representation to the National Executive Committee before he was finally dismissed in line with staff handbook and NUT constitution. Equally, the staff handbook makes provision that any staff whose character is questionable may have his/her appointment terminated by the National Executive Council or by the State Wing Executive Council, that a staff of the union may also be summarily dismissed on the following ground: Misconduct and/or corruption whether or not in relation with the performances of his/her duties in the union. Counsel referred court to paragraph 10 of the Defendants’ Statement of Defence and Exhibit D1. He said the Committee met in Abuja on the 31st of July, 2012. On the said date the Claimant appeared before the Committee where he admitted the allegations that he and some others has defrauded the union to the sum of over N76.6million and that his share in the fraud was N29,750,000.00 and that he should be forgiven. He also promised to repay the money he had embezzled if given sufficient time to do so. The Committee found that the Claimant also committed various other acts of fraud and infractions of the Constitution of the union as contained in the Report of the Committee referred to in Exhibit D1 supra. The National Executive Committee of the Nigeria Union of teachers on the 2nd day of October, 2012 took a decision to dismiss the Claimant as its employee as a result of his involvement in the fraud perpetrated in the Rivers State wing of the Nigeria Union of teachers and also based on his admission of participating in the said fraud. On the 24th of July 2012 the 3rd Defendant issued a Query to the Claimant demanding that he explain in detail the true amount he had been collecting as dues from the Rivers State Government and how the dues have been distributed or shared in the Rivers State Wing and when the shady deal began and on the same date, that is 24th July, 2012 the Claimant replied the Query and admitted that he and some officials of the Union in Rivers State usually collected check-off dues from the Rivers State Government and decided on the figure to declare to the National Headquarters of the union and then arrived at a formula for sharing the balance among themselves. For the avoidance of doubt, the Claimant’s statement is reproduced as follows: “At the end of the month, when dues are collected, the trustees meeting is summoned by the chairman. In such meeting, the chairman presides. It is the chairman that decides how much to be declared to the Head Office and how much balance that the trustees urgment… the dues are not static they increase and decrease according to increase in wages by government…..in the meantime, the current chairman’s formula is as follows: 1. Chairman N3,500,000.00 2. Secretary N3,000,000.00 3. Treasurer N2,200,000.00 4. Accountant (1) N1,000,000.00 5. Chris Oruge N2,000,000.00 6. Office Extra Expenses N2,000,000.00 7. PR to Pay Office N250,000.00 8. Accountant (II) N50,000.00 9. NLC Official receipted N1,440,000.00 10. NLC undeclared N2,000,000.00 11. Secretary N1,900,000.00 12. Accountant (1) N1,300,000.00” Counsel referred the court to Exhibits C9 and D1. He went on that under cross-examination, the Claimant admitted that it was not his function to disburse the funds of the union when the said: ‘As state Secretary of NUT, my functions were to take record of minutes of meetings & to manage the staff of the office and do any assignment as directed by the Chairman.’ The Claimant equally admitted under cross-examination that he took part in misappropriating the funds of the union when he said: ‘My name is shown as having received N3m. The Chairman assigned the money to me for the monthly running of the office, and that was not the way the former chairman was assigning money to me. Since 2009 up till the time I left, I cannot remember how much I was given but in paragraph 3 of the Exhibit C9, the sum of N1,050,000 was assigned to me.’ The Supreme Court in plethora of cases has defined admission to mean, a statement oral or written made by a party to a civil proceeding and which statement is adverse to his case is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement. Counsel referred to the case of SEISMOGRAPH SERVICE (NIG) LTD vs. CHIEF KEKE OGBENEGWEKE EYUAFE (1976) 9-10 S.C. 135. Referring further to the case of EIGBE vs. NUT (2008) 5 NWLR (Pt.1081) 604 the Court said that an admission is an express or implied concession by a person of the truth of an alleged act. It is generally presumed that no man would declare anything against himself unless it was true. To Counsel, from the above evidence which was in no way controverted and which is self-acknowledgement, it is clear that the only conclusion left to be drawn is that the Claimant committed fraud against the union and misappropriated the union’s fund and no more. He submitted further that in statutory employment as well as in private employment, the employer can dismiss an employee where the accusations against such employee is of gross misconduct involving dishonesty bordering on criminality, and in such a case it is not necessary nor is it required that the employee must be tried in a Court of law. In the instant case, the claimant admitted embezzling, and fraudulently misappropriating the 1st Defendant fund. It was therefore not necessary for measures against him by summarily dismissing him. Thus prosecution of an employee before the law Court is not sin qua non to the exercise of the power of dismissal by an employer for gross misconduct involving dishonesty bordering on criminality. Counsel referred the Court to the case of EIGBE vs. NUT (2008) 5 NWLR (Pt.1081) 604, and also ARINZE vs. FBN (2004) 12 NWLR (PT.888) 663. The court was further referred to the case of NDUKWE vs. THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2007) 1-2 S.C. 253 where the Supreme Court said: Where a charge or complaint against a person before an administrative tribunal or body doubles as a crime under the criminal code and the person accused has admitted committing the offence or offences, the administrative tribunal or body has jurisdiction to proceed to sanction the erring officer without first referring the matter for trial and determination before a Court of competent jurisdiction because the admission of guilt discharges the burden of proof placed by law on the accuser. This clearly is an exception to the general rule that where an allegation against a person before an administrative tribunal is also an offence under the criminal code, the administrative tribunal cannot hear. It is case of the 1st – 4th & 6th Defendants that they discovered on 17th of May 2012 that some of the elected and appointed officials of the Nigeria Union of Teachers had perpetrated serious acts of defrauding the Union in respect of check-off dues payable to the union by the Government of Rivers State of Nigeria, and that it was the new State Secretary posted to Rivers State wing of the Nigeria Union of Teachers who discovered the details of the said fraud consisting the Claimant and some other persons collecting check-off dues from the Rivers State Government and underreporting the amount collected to the Headquarters of the of the Nigeria Union of Teachers while sharing the balance among themselves without the knowledge or authorization of the headquarters of the Nigeria Union of Teachers. On the 27th of July, 2012, they inaugurated a committee to investigate the allegations of fraud/maladministration in the Rivers State wing of the Nigeria Union of Teachers and the Committee met in Abuja on the 31st of July, 2012. And based on the report of the committee as shown in exhibit D1, the National Executive Committee vested with the power, dismissed the Claimant. We refer the Court to Chapter 11 sub 11.8.3 (c) of Exhibit C6. For the avoidance of doubt, the section provides thus: A staff of the union may also be summarily dismissed on the following ground: (c) Misconduct and/or corruption whether or not in relation with the Union. ARTICLE 29 Exhibit C7 Provides thus: Any member of the Union may be expelled or may have his membership suspended if in the opinion of the National Executive Council, such as a member has been found guilty of the following: (a) Sabotage or anti-union activities (b) Conduct prejudicial to the interest of the union (c) Misappropriation of funds or being a party to any fraud against the union. The procedure to be followed is also provided in Article 29 (2) (a) of the NUT constitution marked Exhibit C7 thus: “in the case of any offence against a state wing, such a state wing shall initiate disciplinary action subject to the overriding approval of the National Executive Council’. Counsel pointed out that the above procedure was followed by the 1st Defendant before the Claimant was dismissed. He referred to the case of FLRAPSSA vs. MBNL (supra). Also in NWOBOSI vs. C.A.N (1995) 6 NWLR (Pt. 404) 658 at 686, the Court emphatically made it clear some of the factors that can necessitate the dismissal of an employee thus: “Various acts may give rise to a dismissal. For example, willful disobedience to lawful and reasonable orders, misconduct of the master’s business, neglect, incompetence and other conduct incompatible with or prejudicial to the master’s business.” It is therefore a necessary corollary that an employer who has the right to dismiss an employee for simple disobedience has an unfettered power to dismiss an employee who committed fraud against the employer and from the evidence before the Court it is not in dispute that the conduct of the respondent justified his dismissal. In ARINZE V. FIRST BANK OF NIGERIA (supra) the Supreme Court unequivocally held that an Employer has the right to summarily dismiss an employee for acts of gross misconduct which borders on criminality without first prosecuting the employee for the alleged crime in a Court of Law. The Court in NWOBOSI V CAN (supra) went further to say that a servant whose conduct is incompatible with the faithful discharge of his duty to his master, may be dismissed, as for instance, if unknown to his employer, he enters into transactions whereby his personal interest conflict with his duty as a servant in his particular capacity.” Counsel called the Court’s attention to paragraph 4 of the Claimant’s reply to the Defendants’ statement of defence where the Claimant stated thus: “The Claimant’s alleged letter dated 30/7/2012 issued to the committee allegedly sitting on 31/7/2012 is forged and accordingly disclaimed. That the letter purportedly written by the Claimant was said to be for a panel sitting on the 31/7/2012, the alleged letter was dated 30/7/2012 even when it was alleged that the Claimant was ordered to write same instant that 31/7/2012, on or about 4.57pm. The signature on the said document was not that of the Claimant and or never signed by him. The aforesaid report is a hoax and sorely made by the Defendants to tarnish the image of the Claimant.” Counsel went further that under cross examination, the Claimant admitted that he signed the reply to the query which is the same signature to the letter dated 30/7/2012 titled ‘my statement as per River State Finance management’ which the Claimant sent to the committee. The said statement under cross examination is reproduced as follows: “I have never been issued a query. I replied to the last query I was issued. I signed the reply. That is exhibit C9.” According to Counsel for the defence, the above statement is a contradiction of the averment of the Claimant in his pleadings contained in his Reply to the Defendants’ Statement of Defence. He then submitted that the Claimant’s pleadings and the evidence under cross examination are at variance as such it cannot be relied upon. He referred the court to the Court to paragraph 4 of the Claimant’s Reply to the Defendants’ Statement of Defence as well as the evidence in cross examination and submitted that it is a trite principle of law that where pleadings and the evidence are at variance, the Court will not rely on it. On this, Counsel referred the court to the case of EMEGOKWUE vs. OKADIGBO (1973) 4 S.C. 78 where the Supreme Court held that: It is trite law, and we have repeated it on many occasions, that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. See also the case of VANDERPUYE vs. GBADEBO (1998) 3 NWLR (PT.541) 271. In arguing Issue Two, it was the submission of Counsel that the Defendants on the 24th of July 2012 through the 3rd Defendant issued a Query to the Claimant demanding that he explain in detail the true amount he had been collecting as dues from the Rivers State Government and how the dues have been distributed or shared in the Rivers State Wing and when the shady deal began. The Claimant replied the Query and admitted that he and some officials of the union in Rivers State usually collected check-off dues from the Rivers State Government and decided on the figure to declare to the National Headquarters of the union and then arrived at a formula for sharing the balance among themselves. Hence, he admitted that he and others had sinned and come short of the Glory of God and that the union should pardon them as they promised to sin no more. This was based on the investigation of the Committee to investigate the allegations of fraud/maladministration in the Rivers State Wing of the Nigeria Union of Teachers. The Claimant appeared before the Committee where he admitted the allegations that he and some others had defrauded the union to the sum of over N76.6Million and that his share in the fraud was N29,750,000 and that he should be forgiven. He also promised to repay the money he had embezzled if given sufficient time to do so. Counsel referred the Court to paragraphs 11, 12, 13, 14 and 15 of the 1st Defendant’s Statement on Oath and EXHIBIT D1 particularly to the letter titled my statement as per River State financial management dated 30th July 2012 and submitted to the investigation panel as follows: “The sum of financial implication are: 1. From May 2 2009 – May 2010 N350,000 x 12 =N4,200,000.00 2. From June 2010 – September 2011 N350 x 16 =N5,600,000.00 3. From October 2011–February 2012 N1,050,000.00 x 5 =N5,250,000.00 4. From March 2012 – May 2012 N3,000,000.00 =N9,000,000.00 5. From March 2012 – May 2012 N1,900,000.00 =N5,700,000.00 Total =N29,750,000.00” The above statement draws an irresistible conclusion that the Defendant to the Counter Claim is indebted to the Counter Claimant to the tune of N29,317,239.68 being the sum of N29,750,000 embezzled by the Defendant to the Counter Claim less the sum of N432,760.32 being his two months’ salary for the month of June and July, 2012. Being that the Defendant to counterclaim has admitted wrong doing; the Counter claimant is therefore entitled to the counterclaim. Counsel submitted that it is the duty of a Court called upon to decide such an issue to study carefully the document on which reliance is placed by the defendants and ascertain as best as it can whether the document by its contents does recognize the existence of a right or debt against the defendants. He referred to the case of L.T. THADANI & ANOR vs. NATIONAL BANK OF NIGERIA LTD (1972) 1.S.C. 75 in urging the Court to grant the counter-claim. Counsel to the defendants concluded that the termination of the employment of the Claimant was not in violation of his condition of service and the NUT constitution, as the procedure was proper. He said the defendants are entitled to the relief sought in their counterclaim. He placed reliance on the Supreme Court case of YUSUF vs. UNION BANK OF NIGERIA LTD (1996)6 NWLR (PT.457) 632 S.C. where the Court held per Wali JSC thus: It is not necessary, nor is it a requirement under S. 33 of the constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. I may go further to say that the provisions of S. 33 supra have no application to the facts of this case. See: Ransome-Kuti v. A.G. of the Federation (1985)2NWLR (pt.6) 211. The Claimant’s final written address filed on the 7th day of August 2014 raised the following three (3) issues for determination: 1. Whether there was established contract of service or master/servant relationship between the claimant and the Defendants and or Defendants’ principal (1st Defendant). 2. Whether the Claimant’s dismissal by the Defendants acting for their Principal on 21/10/2012 vide referenced NUT/HOS/PF/V.1/177 on grounds of allegation of commission of crime is proper and or in accordance with the NUT constitution and staff condition of service (contractual document guarding their relationship). 3. That in the event the Honourable Court found that the claimant’s dismissal was in breach of the contract of employment regulating their relationship, and/or constitutionally guaranteed right of fair hearing, whether the claimant is not entitled to all our substantial part of his claims. In arguing Issue one (1), it was the submission of learned counsel to the Claimant that both parties are agreed that the claimant was duly employed by the 1st defendant. He referred the court to the claimant’s statement of facts particularly paragraphs 2, 3, 5 and 9, in comparison with the 1st – 4th and 6th Defendants’ Statement of Defence particularly paragraph 2. Counsel noted that the 5th & 7th Defendants by no means denied the fact. He also referred to Exhibits C1 – C5 and C9 – C10, respectively, as well as Exhibit D.1. It is trite law that admitted facts need no further proof. See Section 123 of the Evidence Act, 2011. It was counsel’s further submission that the Defendants having admitted the employment of the claimant by the 1st Defendant as contended, he urged the court to hold that there was a contract of service or master/servant contractual relationship between the claimant and 1st defendant, and whose Agents (at all times material to the cause of action) include the 2nd – 7th Defendants as issued and described variously. On Issue two (2), it was the submission of counsel that it is elementary law that when an employee as in the instant case alleges wrongful dismissal or termination it becomes onerous for such claimant to: a. Place before the Court the terms of the contract of employment, and therefrom b. Prove to the satisfaction of the Court, in which manner the terms were breached by the employer in dismissing/terminating his employment alternatively. He went on that the claimant may as well rely on the provisions of the Grundnum (superior law i.e. The Constitution of the Federation which has overriding powers) which supersedes and nullifies the provisions of any contractual relationship in event of conflict, hence it is settled that parties cannot by consent contract outside the law. It is the view of the Claimant that the above elements/conditions arose from the undisputed fact of the terms of a contract (in the strict sense of the relationship being a private contract between employer and employee) forming the bedrock of the case and relationship. Counsel submitted that by the defendants’ admission, the contract of service between the claimant and the 1st Defendant with the other defendants as agents of the 1st Defendant is settled. He contended that admission without more in the instant case will neither aid the claimant nor the Court to arrive at desired justice, hence most of the heads of claims are declaratory in nature. With the above in mind according to counsel, the arena of guiding laws became further narrowed. The Court has in the decided case of NIGERIAN PRODUCE MARKETING BOARD vs. ADEWUMI (1972) 11 SC. 111, stated that, “Where there is a contract of service agreement, both parties are to be guarded by the terms of such agreement, none of them can operate outside the terms and conditions. Further, that the Courts should not look outside the terms stipulated or agreed therein in deciding the rights of the parties thereto. The claimant gave graphic testimony and backed it up with exhibits, particularly exhibits C.6 (NUT Staff Conditions of Service) and C.7 (NUT Constitution). These documents bind the claimant’s services to and with the Defendants, especially with the 1st Defendant. In the circumstances Counsel urged the Court to hold that by Exhibits C.6 & C.7, the Claimant has fulfilled the requirements of element (a) of issue No. 2 as formulated. On element (b), it was Counsel’s submission that the employer has unfettered powers to dismiss/terminate his employee at will without notice/reason, but where an employer decides to dismiss/terminate his employee with reason, then the law demands that the employee be given opportunity to defend himself or be fairly heard. See BABA vs. CIVIL AVIATION (1986) 5 NWLR (Pt.515) ratio 6. He went further that the employer in dismissing/terminating the employee shall do so in strict compliance with the terms and conditions of the contract of relationship, else it is bound to be pronounced wrongful by the Courts of law. It was counsel’s further submission that further to the above, should the employer and employee execute any contract of employment wherein any of the terms is/are inconsistent with/ultra vires the provisions of any existing law, inclusive of conditions for dismissal, then, that term(s) as well as the act itself (if carried out) shall to the extent of the inconsistency be void, and no claim/action can be founded and or predicated upon it. He went on that irrespective of the fact that contract of employment document is the bedrock of master/ servant relationship, parties to a contract (how so ever form) are not allowed by consent, act, omission, commission and or ignorance to contract outside the law, See Sections 1 (3) and 36 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Counsel to the Claimant submitted that in deciding the propriety or otherwise of the claimant’s dismissal as contained in Exhibit C. 10, the Court is urged to place Exhibits C.6 & C.7 alongside the provisions of Sections 1 (3) and 36 (1) & (2) of the Constitution, as well as the claimant’s testimony that no query at all was issued to him regarding allegation of his defrauding 1st Defendant. That he was neither indicted, arrested nor prosecuted, and or convicted by any Court of law/tribunal. This is even more curious when the Defendants admitted the Claimant’s averment in Paragraph 18 of his Statement of Fact without reservation. Counsel submitted that the futility of the Defendants’ stance on display of fair hearing and compliance with the document of contract of service in the claimant’s dismissal vide their Exhibit D1 not only exposed their non-compliance but affirmed the opposite as contended by them, nowhere was query (upon committee finding of misappropriation of fund by the claimant and other allegedly investigated (probed) shown to have been issued. Exhibit C.14 put to rest any iota of doubt to the effect that the claimant was neither in office (at 1st Defendant’s offices at Abuja between) 29/7/2012 – 1/8/2012. Which period the Defendants alleged, he was interviewed on or about 4.57pm on 31/7/2012 and he wrote an attachment to Exhibit D.1 marked EV.1, which inexplicably was dated 30/7/2012. He referred the Court to Exhibit C.6 particularly Chapter 11.8.3 (e) and 11.8.5 in comparison with Article 29 (3) of Exhibit C.7 and the tone of the dismissal letter/the author thereof i.e. the National Executive Council (NEC) of the Defendants. He noted that the (NEC) body’s decision is final in the sense of finality and without right of appeal, per NIKI TOBI, JSC, on the finality of matters before the Supreme Court. Counsel to the Claimant submitted further that against chapter 11.8.5 of Exhibit C.6 neither fair hearing nor right of appeal were availed the claimant as could be gleaned from Exhibit C.10 and the grievous weight of allegation thereof against the claimant. This is even more so as DW1 did upon cross examination on 25/2/2014 admit that it was on the strength of Exhibit D.1 that the claimant was dismissed from Defendants’ employment and even while Exhibit C.11, was pending in Court. He further contended that it would amount to wrongful dismissal, for the Defendants to dismiss any of its employees inclusive of the claimant for any reason outside the expressed grounds listed in the document of contract if at all, and indeed for any reasons whether listed or not, but having any express or implied element of criminality in breach of pronouncement by Court of law. It was his further submission that where a dismissal is linked to the commission of a criminal offence as in the instant case (by the Defendants ‘ipse dexit’) with documentary contention; or allegedly is contemporaneous with facts suggesting the commission of a crime, the Court will still set aside or pronounce such dismissal/termination as void and wrongful even though no reason was vocally given for such action. On the propriety or otherwise of the admissibility of Exhibit D.1, Counsel submitted that the bundle of document admitted in Evidence on 25/2/2014 as Exhibit D.1 though not opposed to by the Claimant’s Counsel was admitted in error and ought to be expunged for the following reasons: 1. The document was made during the pendency of an action between the parties in this suit, in Re: Exhibit C.11, and in particular against claim Nos. C & F therein which were sub judice. Refer to Section 83 (3) 7 (4) of the Evidence Act, 2011. 2. The document and the act giving rise to it constitute gross abuse of the judicial proceedings per Exhibit C.11, (which to the knowledge of the Defendants and their counsel (who represented them, same instant) was pending up to 11/2/2013 , and a Notice of Appeal filed on 21/12/2013 made following the ruling of 11/12/2013 and subsequently this present action filed on 21/5/2013, see MILAD vs. OJUKWU (1986) 2SC 277 (PT. 18). It is not the position of the Defendants to argue that the admissibility of the document was not opposed, hence it is settled that consent or ignorance of parties cannot render inadmissible evidence/document admissible, and that where such is the case the court is bound to expunge the same, see MINISTRY OF LABOUR vs. AZIKIWE (1969) 1 ALLNLR. 49, see also, KANKIA vs. MAIGERU (2004) FWLR (PT. 206) 4600 RTS. 18, 19 & 20. Concluding, Counsel to the Claimant submitted that Exhibit D.1 constitutes a statement made by a person (the Defendants) interested at a time when proceedings (refer to Exhibit C.11) were pending or anticipated (refer to the instant suit) and that it involves a dispute (refer to the various claims thereof) as to any fact (alleged fraudulent acts of the claimant) which the statement might tend to establish. He submitted that parties in an action cannot by consent, collusion or inadvertence admit an inadmissible evidence and that should be the case as in the instant case, the Court have powers to expunge such evidence inclusive of documentary one. He contended that, should the Court so expunge Exhibit D.1 as is bound, then the Defendants’ Defence, as well as their counter claim crumbles, being that Exhibit D1 is the pivot of their defence and counterclaim. He urged the court to so hold. In arguing Issue three (3), Counsel submitted that a upon painstaking overview of Exhibits C.6 & C.7 alongside Sections 1 (3) and 36 (1) & (2) of the 1999 constitution as amended, (with Exhibit D expunged as rightly contended) the Court will easily arrive at the irresistible conclusion that Exhibit C.10 was not only issued in bad faith, but grossly unsustainable by every reasonable standard and, that it is wrongful howsoever way it is viewed. The Defendants admitted that none of their organs constitutes Courts of law/tribunal, yet they dismissed the claimant on the alleged basis of commission of criminal Act to wit, defrauding them to the tune of N29,750,000 and demanding for a refund even after maliciously withholding his salaries for months and throwing him of their accommodation which was part of the incidences of his employment. Reacting to the 1st – 4th and 6th Defendants’ Written Address, The Claimant submitted that the 2 issues formulated by the defendants are diversionary and misleading. To counsel, the kernel of this suit is ‘the propriety or otherwise of the dismissal of the claimant from the employment of the Nigerian Union of Teachers’ and not termination of the employment of the Claimant in the circumstance/in line with the constitution of NUT staff condition of service and financial instructions of NUT. Counsel submitted that it is trite law that the defendants and/or their counsel cannot by act, omission, commission or ignorance alter the nature of the claimant’s case/claim. He cited the case of ADESOKAN vs. ADGOROLU (1991) 3 NWLR (Pt. 293) 677 and submitted that there is a great divide between “dismissal” and “termination”. On issue 2 as formulated by counsel to the defendants, Claimant’s counsel submitted that the 1st defendant has no single counterclaim against the claimant different from the joint counterclaim of the defendants. Since the other counterclaimants did not withdraw their joint claim, therefore the issue “whether the 1st Defendant is not entitled to the counterclaim brought against the claimant” is of no moment. He urged the court to discountenance the issues formulated by the defendants. Counsel proceeded to set out the Exhibits as marked by the court (Exhibits C1 to C15 and Exhibit D1), as in his view, learned counsel for the defendants appears to have some difficulty distinguishing some of the Exhibits as tendered. He then submitted that Chapter 11 of Exhibit C6 covers discipline in general whereas sub 8 deals with dismissal which is the subject of this action. He went on that issues of dismissal ends with a proviso at 11.(8)(5). This he contended is general in nature, to wit: 11.8.5 “In all cases before the disciplinary action is handed down, the staff shall be given a fair trial and the right of appeal”. Counsel urged the court to note the 3 cardinal elements ‘shall’, ‘fair trial’, ‘right of appeal’ which connotes mandatory and not permissive. He said the said proviso envisages a form of indictment followed by trial which results in a judgment, and appeal. The germane issue for the court to determine is whether these processes were complied with or not. Counsel submitted that Exhibits C6 and C7 does not translate into fair trial, and that Exhibit D1’s reference to Article 29 (g) and (h) of the NUT constitution is misconceived, as it distinguishes between a staff and a member of the NUT, pointing out that the claimant was not a member of the 1st defendant but a staff, therefore entitled to fair trial, followed by a right of appeal, which he was denied. Counsel submitted, referring to the dictum of Nnaemeka JSC in GARBA vs. UNIMAID (1986) NWLR (Pt. 18) 550 at 603, 618, that merely being a witness in an enquiry does not satisfy the requirements of natural justice. See also AIYETAN vs. NIOPR (1987) 6 SCMDJ 4 @ 8. The defendants alleged that the Claimant was invited vide Exhibit C15, and that he made a representation to NEC before he was finally dismissed. This, according to the Claimant, does not translate to fair hearing. He contended further that there was a disconnect between the reasons in Exhibit C10 and Exhibit C15 which was issued when the Claimant was the sitting State Secretary of the NUT Rivers State wing, and that there was no allegation of impropriety whatsoever against the wing as a whole or the claimant in person. The Claimant proceeded to submit that it was a misconception for the defence to posit that the claimant was invited and that he made representation before he was dismissed. He also submitted that Exhibit C14 and the Claimant’s deposition in paragraphs 4, 5, 6, 7, 8, and 9 of his deposition of 4/10/2013 which were neither controverted nor denied settled the issue as to whether the investigative committee interviewed the Claimant or obtained the alleged response marked EV.1 inside Exhibit D1 from him., In reaction to paragraphs 3.3-3.20 of the Defendants’ final written address, the Claimant referred the court to paragraph 18 of his pleading as well as paragraph 17 of his evidence/deposition of 21/5/2013 which were expressly admitted by the defence vide paragraph 2 of their pleading of 23/7/2013. Counsel then urged the court to discountenance counsel’s argument and submissions as admitted facts need no further proof. The Claimant maintains that at no forum or ever has he admitted defrauding the defendant. This, he said, DW1 even confirmed/corroborated under cross examination. Concluding, Counsel to the Claimant submitted that the Claimant had proved his case on the preponderance of evidence and is accordingly entitled to all or substantial part of his claims as the court may deem fit, against the defendants, both the ones that put up a defence and the ones that did not. It is counsel’s further submission that the Claimant has in Paragraphs 11-16, 18, 20-22 of his deposition, highlighted instances of damage done to him and his reputation both health wise, social, employability, psychological, political and mental. He urged the court to put all these adverse consequences into consideration in granting the claimant’s claims for general damages. He urged the court further to hold that the Claimant has proved his case against the defendants and that the 1st – 4th and the 6th defendants’ counterclaim is lacking in substance and unmeritorious. The 1st, 2nd 3rd, 4th and 6th defendants, on the 22nd day of September, filed a Reply on Points of Law wherein Counsel to the defendants responded seriatim to the three issues raised in the Claimant’s written address. In reaction to Issue one formulated by the Claimant, Counsel to the defendants submitted that the court ought to discountenance the argument of the learned counsel to the claimant that the claimant had an employment with the Defendants which was not in dispute either in the Defendants’ defence or in their argument. He went on that the Claimant’s argument that there is sufficient evidence to show that the claimant was under the employment of the Defendant goes to no issue, as it was never under contention whether the claimant had employment relationship with the defendants. On issue two, it was the submission of learned counsel to the defendant that the Claimant had erroneously argued that his employment with the defendants was wrongfully terminated, and in an attempt to justify his position, he argued that the constitution of the Federal Republic of Nigeria supersedes every contractual agreement. To the defence, there appeared to be a contradiction when the Claimant turned around to argue that the parties to a contract are bound by the terms of their contract. He pointed out further that the claimant had further argued that the defendants has unfettered right to dismiss the claimant but not without the opportunity to be heard. The claimant in his argument stated further that he was given query or any opportunity to be heard before the dismissal and that he was not indicted, arrested, prosecuted or convicted. According to the defence, the claimant in an attempt to argue issue 2 as formulated, veered off the track and employed the services of diversionary tactics. He said that the argument of the learned counsel to the claimant is misleading, as counsel to the claimant, on page 4 of his address openly misled the court by citing a non-existing case. The case of BABA vs. CIVIL AVIATION (1986) 5 NWLR (PT. 515) RT. 6 cited by the Counsel is totally strange and unknown as no such case was reported in the NIGERIA WEEKLY LAW REPORT. Counsel went further that contrary to the insinuations and stance of the claimant’s counsel in paragraphs 4 and 5 of page 5 of the claimant’s final address, the law is clear that even gross misconduct without much ado, attracts dismissal and the employer need not give reason for the dismissal. See: OLANIYAN vs. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599. In ALHAJI LASISI YUSUF vs. UNION BANK OF NIGERA LTD. (1996) 6 NWLR (Pt. 457) 632 S.C. the Supreme Court held thus:- “It is my considered view that before an employer can dispense with the services of his employee under the common law all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime”. In reaction to the claimant’s counsel’s contention that the claimant was not given fair hearing and that the appropriate procedure would have been to arrest and take the claimant to court for him to come and defend himself; it was the submission of Counsel to the defence that the law is settled that an employer can dismiss for gross misconduct without first going through a criminal trial. That is the position of the Supreme Court in the case of OLAREWAJU vs. AFRIBANK NIG. PLC. (2001) 13 NWLR (Pt. 731) 691. Responding further to issue 2, the Claimant counsel had argued that the Defendants had admitted in their defence that; the dismissal of the claimant was based on commission of crime and that there was no time in which the claimant admitted misappropriating the Defendants’ money to the sum of N29,750,000.00; Counsel to the defence submitted that the claimant’s counsel highly misconstrued the Defendant’s averment contained in paragraph 2 of its Statement of Defence. Paragraph 2 of the defendant’s Statement of Defence is to the effect that the contents of the letter of dismissal issued to the claimant was on the basis of alleged commission of crime and misappropriation of the defendants’ funds and nothing more. He went further that the defendants only admitted to the extent that the dismissal of the claimant was on the basis of alleged commission of crime on the face of the dismissal letter. The same letter of dismissal also alleged that the claimant in an undisclosed forum admitted misappropriating and unlawfully utilizing for his own purpose the sum of N29,750,000.00 belonging to the union without the consent or approval of the union or any of its organs. The paragraph in the statement of fact referred to by the claimant states the reason why the claimant was dismissed which was based on the letter of dismissal. To counsel therefore, the Claimant cannot give such uncharitable interpretation to paragraph 18 of their statement of fact. The law is that parties are bound by their pleadings and it is not the duty of counsel to amend or import a self-serving meaning in its address in order to fit his intentions, nor is the counsel at liberty to amend his pleading in the written address. The law is also settled that pleadings provide the foundation of the case of the parties and anything outside the pleadings is to no avail. Thus parties are bound by their pleadings and what is not pleaded will go to no issue. See the case of UNITY BANK PLC vs. BOUARI (2008) 7 NWLR (Pt. 1086) at 372 PP. 141. Counsel to the defence pointed out that the claimant had also contended that the National Executive Council (NEC) of the Defendants arrogated supremacy to themselves without right of appeal as shown in Exhibit C6 & C7 and also in the tone of the dismissal letter. He said the Claimant in page 5 have also argued that the Exhibit C6 & C7 did not make provision for appeal and that it made the National Executive Council of the Defendants a final body. According to the defendants, the argument of the claimant’s counsel further exposed his misapprehension of the fact of this case. To the defence, from the fact of this case, it is obvious that what is before this Court is not the question of the interpretation of Exhibit C6 & C7. Howbeit parties are bound by terms of their contract. The claimant was alive and kicking with a capacity of full age to enter into a legal relationship and did enter into employment agreement with the defendants; he cannot be seen to be complaining of the propriety of the document of the defendants. It is a trite law that a written contract agreement freely entered into by the parties is binding on them. A court of law is equally bound by the terms of any written contract entered into by the parties. Simply put a contract and agreement overcome the law. Convention et modus vincuntlegem. See: KAYDEE VENTURES LTD. vs. THE HON. MINISTER OF FEDERAL CAPITAL TERRITORY (2010) 2 -3 SC 1 In A.G. FERRERO & CO. LTD. vs. HENKEL CHEMICALS (NIG.) LTD (2011) 13 NWLR (1265) 592 the Supreme Court Per. F. F. Tabai JSC thus:- “Parties are bound by the clear provisions of the contract and the court is bound to give effect to same. On sanctity of contract and the bindingness on the parties thereto….” The defence counsel recounted further that it was the contention of the claimant that he was admitted in the hospital in Port-Harcourt as per Exhibit C14 on the date in which Exhibit D1 was made hence denied being either present or the maker of the representation of Exhibit D1. The claimant in paragraph 4 of page 5 of his written address raised the issue of having been admitted in the University Teaching Hospital Port-Harcourt and that he was neither in the office nor was he interviewed by the Committee referred to in Exhibit D1. According to the defence, the claimant has raised a serious issue of forgery from this point of argument. This is more curious when the claimant claimed that he was not in the office which means that the said reply to the query which bears his signature was not made by him or was forged and that he made no representation to the committee referred to in Exhibit D1. However, it is not in the record of the Court or in any record that the claimant reported the case of forgery of his signature to police station or any law enforcement agency, rather he placed reliance on conjectural statement. If indeed the claimant ever truly believed that there was an incident of forgery, then it would have been expected that a copy of the police report of same should be exhibited before the court. Counsel urged the court not to rely on the delusions of the claimant but rather on the documents before it and in this vein, he urged the court to discountenance the claimant’s argument as being mischievous and calculated to confuse the court. The law is clear on the position that where a party denies making a document which he is alleged to have executed or signed or thumb printed, such denial is tantamount to saying that the document is a forgery or a fake. In such a case the burden of proof of the forgery rests on the party who alleges. Since forgery is a crime, the onus of proof on him who alleges is proof beyond reasonable doubt. See EDOHOCKET vs. INYANG (2010) 7 NWLR (Pt. 1192) Pg. 25 @ 57. In the instant case, the Claimant did not show any document to prove the case of forgery. The Claimant’s counsel again has failed to tell the court whether the said reply in Exhibit D1 was signed by the claimant and whether the reply to the query was equally made by him. It is on record of the court that the claimant under cross-examination admitted that he replied and signed the said query when he stated thus: “I attended the meeting for which Exhibit C15. The subject matter was for Trustees & Accountants to explain our monetary transactions of the dues, to the Head Office. That was done in the meeting…..” I have never been issued a query. I replied to the last query I was issued. I signed the reply. That is Exhibit C9. My name is shown as having received N3m. The Chairman assigned the money to me for the monthly running of the office”. Counsel for the defence urged the court to look at the record and consider the statement of the claimant in respect of this issue, the claimant reply to query in Exhibit D1 and the witness deposition in his statement on oath to compare if the signatures are the same. In the case of SAIDU vs. ABUBAKAR (2008) 12 NWLR (Pt. 1100) Pg. 201 @ 298 the Court unwaveringly stated the essence of signature where it said: “A signature authenticates and validates an act, transaction of such other similar thing.” It is trite law that courts are bound by their records. In LEADERS & CO. LTD. vs. BAMAIYI (2010) 18 NWLR (PT. 1225) 329 @ 339, the Supreme Court held that: Courts are bound by their records. See AFRIBANK PLC vs. YELWA (2011) 12 NWLR (1261) Pg. 286 @ 306 -307. Counsel referred to Section 101(1) of the Evidence Act, 2011 which provides that:- “In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.” This provision of the law, counsel submitted, has been given impetus by the court in the case of ATUCHUKWU ADINDU (2012) 6 NWLR (PT. 1297) PG. 534 @ 572. Where the court held thus: “By virtue of Section 108 of the Evidence Act (now S. 101 of the Evidence Act), where a witness disputes a signature purported to be his, he can be made to sign, and comparisons can be made by the court between the signatures to decide the genuine one”. Section 123 of Evidence Act states that fact admitted need no further proof. In further reaction to issue 2 formulated by the Claimant, the defence submitted that the Claimant contented the admissibility of Exhibit D1 in that it was made during the pendency of a suit; Exhibit C11 and therefore it constitutes an abuse of court process. He therefore urged the court to expunge Exhibit D1 for being inadmissible. The claimant in page 6 paragraphs 2, 3 and 4 argued that Exhibit D1 was made during the pendency of Exhibit C11 and that it amounts to abuse of court process. He cited section 83 (3)(4) of Evidence Act and urged the court to expunge the said Exhibit. Counsel to the defence submitted that the argument of the claimant is misleading and section 83 of the Evidence Act cited by the claimant is totally irrelevant as it has no relationship with the instant case. This matter was filed on the 21st day of May 2013 while the document Exhibit D1 was made on July 2012. The Exhibit C11 referred to by the claimant was a non-existing case, which counsel to the defendants urged the court not to attach any evidential value to, whatsoever, as it was filed on the 30th August, 2012 while the said Exhibit D1 was made in July 2012 and the said suit was struck out by this Honourable Court sitting in Enugu on 11th of February 2013 and has long been dead before the institution of the present suit which was filed on 21st May 2013. The case of KANKIA vs. MAIGEMU (2003) 6 NWLR (Pt. 817) 496) and not KANKIA MAIGERU (2004) FWLR (Pt. 206) Ratios 18, 19 & 20 as erroneously cited by the claimant counsel is inapposite and inapplicable in the instant case. In that case which was decided by the Appeal Court, the Appellant was claiming title to the land which he claimed to have been in possession of, for a very long time while the 4th Respondent claimed that the building on the land belong to the Appellant but that the 4th Respondent demised the land to the 5th Respondent whereas the 4th and 5th Respondents have processed all necessary approval of Mai Ungwa but while the Appellant issued a writ against the Respondent and at the pendency of the suit, the 4th Respondent went to make Exhibit A. It is the submission of the defence that the act of 4th respondent in the above stated case amounts to ‘making a document during the pendency of a suit as the suit had been filed at the time the Exhibit A was made, however in this present case, there was no suit pending before the court when Exhibit D1 (committee’s report) was made. It is obvious from the face of it that the claimant was forum shopping by filing several suits in respect of the same subject matter which in itself amounts to abuse of court process. Counsel urged the court to refer to its records as the fact speaks for itself. Counsel submitted further that a court or tribunal does not conjure evidence. It acts on admissible evidence produced before it. Once a document is received in evidence and so marked, it becomes evidence before the court. Under Section 91 (1) of the Evidence Act, 2011 the court or tribunal has a duty to evaluate the probative value of every documentary evidence tendered before it. He referred to the case of SAIDU vs. ABUBAKAR (2008) 12 NWLR (Pt. 1100) Pg. 201 at 301. He urged the court to so hold. Further to paragraphs 25, 26, and 27 above, Counsel to the defence submitted that Exhibit D1 was lawfully admitted and the court is duty bound to consider all documents placed before it in the interest of justice. In MOHAMMED vs. ABDULKADIR (2008) 4 NWLR (Pt. 1076) Pg. 111 at 156 – 157. The court held thus:- “A trial court has the onerous duty of considering all documents placed before it in the interest of justice. It has a duty to closely examine documentary evidence placed before it in the course of its evaluation and comment or act on it. Documents tendered before a trial court are meant for scrutiny or examination by the court. Documents are not tendered merely for the sake of tendering but for the purpose of examination and evaluation”. Counsel submitted further that the claimant was in court personally with his counsel and had the opportunity to raise objection to the admissibility of the said document but chose to remain mute, and as such, he has waived his right to complain and cannot rightly be raising an objection in his address. He referred to the recent decision of the Appeal Court in the case of See: U.B.A. PLC V. G.S. IND. (NIG) LTD. (2011) 8 NWLR (PT. 1250) 590 AT 618 – 619, where the court empathically held that:- “It is a cardinal rule of evidence and practice in civil as well as criminal cases, that an objection to the admissibility of a document sought to be tendered by a party in evidence is taken when the document is sought to be tendered. Barring some circumstances where by law, certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding), for failing to satisfy some conditions or meet certain criteria, the rule remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document or other evidence, the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission.” Counsel went on that when a document is admitted in evidence it should be allowed to speak for itself. Every inscription on the document should attract the reasonable inference it deserves. See the case SAIDU vs. ABUBAKAR (2008) 12 NWLR (Pt. 1100) Pg. 201 at 300 (SUPRA). Reacting to Issue 3 where the claimant argued on the supremacy and the propriety of Exhibit C6 and C7 which is condition of service and NUT constitution respectively, it was the submission of Counsel to the defence that the claimant had the opportunity of challenging the legality of the said document before he entered into a contract of employment with the Defendants, but having failed to do so, the claimant is bound by the terms of his employment agreement. The law is that the court can only interpret or enforce the agreement entered into by the parties and is incapable of making any contract between them. In the instant case, the claimant has not approached the court for interpretation of the said document. Counsel urged the court to discountenance the claimant’s argument and hold that parties are bound by the terms of their agreement. On the reaction of the claimant to the defendants’ final address, it can be garnered from the argument of the claimant that the relationship between the claimant and the defendants is that of master servant relationship. It is therefore compelling to state that the defendant was magnanimous and lenient enough in dismissing the claimant. Counsel drew the Court’s attention to the case of AJAYI vs. TEXACO NIGERIA LTD. (1987) 3 NWLR (Pt. 62) 577 AT 579 where the Supreme Court said thus:- “There is no fixed rule of law defining the degree of misconduct which would justify a dismissal. It is enough that the conduct of servant is of a grave and weighty character as to undermine the confidence which should exist between him and the master. Working against the deep interest of the employer clearly amounts to gross misconduct entitling the employer to promptly dismiss the employee irrespective of the condition of service”. Counsel for the defence urged the court to discountenance all the arguments of the claimant as being spurious, unsubstantiated and misleading; and he urged the court to grant the defendants the counterclaim as contained in their statement of defence. Having carefully considered the pleadings filed in this suit, the evidence adduced by the parties and the submissions of their respective counsels in the written addresses, I have identified the following issues for determination in this suit- 1. Whether the claimant’s dismissal from the 1st defendant’s employment is wrongful, null and void? 2. Whether the claimant is entitled to his claim for outstanding salaries and other entitlements? 3. Whether the claimant’s claim in libel is competent before this court? 4. Whether the defendants have proved the counter claim? ISSUE ONE: Among the reliefs sought from this court by the claimant, as set out at the beginning of this judgment, is that this court should declare his dismissal from the employment of the 1st defendant wrongful, and null and void. These are contained in reliefs 1 and 2 of the Complaint. In proving his entitlement to these reliefs, the claimant pleaded and also gave evidence to the effect that he was an employee of the 1st defendant until he was dismissed from the employment on 2nd October 2012. It is the claimant’s case that he was employed by the 1st defendant on 16th February 1998 as Assistant State Secretary for the Rivers State Wing of the 1st defendant and his employment was confirmed on 7th July 2001. It is also his case that he was later appointed the State Secretary of the Rivers State wing of the 1st defendant. By a letter dated 24/5/2012, the claimant was redeployed to the 1st defendant’s National Head Office, Abuja. The claimant’s letters of employments, confirmations and redeployment were all admitted in evidence as exhibits C1, C2, C3, C4 and C5. The claimant has contended that the defendants, without complying with the condition of service nor affording him fair hearing, issued him Exhibit C1 dismissing him from the employment of the 1st defendant with effect from 2nd October 2012. The facts of the claimant’s employment by the 1st defendant and his dismissal from the employment have been admitted by defendants. The issue that appears to be in dispute between the parties is the wrongfulness or otherwise of the dismissal. In establishing the wrongfulness and the nullity of his dismissal, the claimant gave evidence that before his redeployment to 1st defendant’s head Office, Abuja, he received exhibit C15 inviting him and the other Principal Officers of the Rivers State wing of the 1st defendant for a meeting with the National Trustees on 17/5/2012. The Claimant attended the meeting. Upon his resumption in Abuja in May 2012, he first noticed his salaries were not being paid and later he was issued a query on 24/7/2012 requesting him to answer issues relating to his office and activities at the Rivers State wing of the 1st defendant. He was given only about 2 hours to answer the query and he did so under duress. As a consequence of the query and the non-payment of his salary, he instituted the suit in Exhibit C11 but while the suit was pending in court, the defendants issued him Exhibit C10 dismissing him from employment on a criminal allegation of misappropriating the sum of N29,750,000 belonging to the 1st defendant. The claimant contends that he was neither invited nor heard by any investigation committee but only heard that there was an investigation in the dismissal letter. He contends further that the allegation for which he was dismissed is false as he, when he was at Rivers state, never presided on monetary issues but he only carried out instructions given by the Chairman of the wing. He contends also that he has never been taken before any security agency or court for trial in respect of the criminal allegation of fraud against him. According to the claimant, his dismissal was not in accordance with the contract of employment. To the defendants, the claimant’s dismissal was proper and justified. In their defence, the defendants have contended that the claimant was dismissed in accordance with the terms of his employment and he was given fair hearing before he was dismissed. The evidence of DW1, in proof of the defendants case, contain that on the 17th May, 2012, the 1st to 3rd defendants discovered that some officials of the 1st defendants Rivers State wing had perpetrated acts of fraud on the 1st defendant in respect of check-off dues payable to the 1st defendant by the Government of Rivers State. DW1 testified that when he was posted to Rivers State Wing of the 1st defendant on 28th May 2012 as the state secretary, he discovered the details of the fraud involving the Claimant and some other persons who were collecting check-off dues from the Rivers State Government. DW1 continued that the amount so collected by the claimant and the other persons was usually not declared to the 1st defendant and these will share the balance among themselves without the knowledge or authorization of the 1st defendant. This was also discovered at a meeting of the National Trustees of the 1st defendant held with the Claimant and the Trustees and Accountant Rivers State Wing of NUT in attendance. Following this discovery, the defendants issued query to the Claimant on 24th July 2012 to explain the true amount he had been collecting as dues from the Rivers State Government and how the dues have been distributed or shared in the Rivers State Wing and when the shady deal began. The claimant replied the query same date and admitted that he and some officials of the 1st defendant in Rivers State usually collect check-off dues from the Rivers State Government and decide on the figure to declare to the 1st defendant and then share the remainder among themselves. On 27th July 2012, the 1st Defendant set up a Committee to investigate the allegations of fraud in the Rivers State Wing of the 1st defendant. The Committee met in Abuja on 31st July, 2012 where the Claimant appeared before the Committee. The claimant admitted the allegations that he and some others had defrauded the union to the sum of over N75.6 Million and that his share in the fraud was N29,750,000 and that he should be forgiven. The claimant also promised to repay the money he had embezzled if given sufficient time to do so. Pursuant to the report of the Committee, the National Executive Committee of the 1st defendant decided to dismiss the Claimant from employment effective 2nd October 2012 as a result of his involvement in the fraud in the Rivers State wing of the NUT and also based on his admission of involvement in the fraud. The foregoing are the facts relied on by the defendants in contending that the dismissal of the claimant was in accordance with the terms of his employment and natural justice. In resolving this issue, it must first be mentioned that it is obvious from the pleadings that the contract relationship between the parties is that of master and servant. In such an employment relationship, as in this case, whether the dismissal is wrongful or not will depend on the terms of the employment. The condition of service of the 1st defendant must necessarily be examined to see whether the correct procedure was followed in the dismissal of the claimant. Where it is found that there is a departure or a breach of the prescribed procedure, then the dismissal will no doubt be wrongful. See EZE vs. SPRING BANK PLC 2012 All FWLR Pt. 609 1076 at 1105. The claimant pleaded the fact that his employment was regulated by the 1st defendant’s staff condition of service. This fact is admitted by defendants. The said condition of service is in evidence as Exhibit C6. The claimant’s contention in the main is that his dismissal was not in accordance with the condition of service. Throughout his evidence however, the claimant did not indicate the provision of the condition of service that was allegedly breached by the defendant in his dismissal. The claimant merely made a general statement that the condition of service was not complied with in his dismissal. Notwithstanding this lapse, since the condition of service is an exhibit in this proceeding, I can look at it in resolving the issue in dispute. The question to ask at this point is whether, in the contract of service between the parties, the 1st defendant has the right to dismiss the claimant? In paragraph 11 of the claimant’s employment letter, Exhibit C1, the claimant was informed, among other terms of the employment, he may be dismissed or his employment terminated by the 1st defendant. In Exhibit C6 also, it is seen in paragraph 11.8.3 of chapter 11 thereof the right of dismissal conferred on the 1st defendant. It is clear from these 2 documents that the 1st defendant has the right in the contract of service to dismiss the claimant. Notwithstanding the provisions of the condition of service, in master and servant employment, the law is settled that the employer has the right to dismiss his employee. See NEPA vs. ENYONG (2003) FWLR (Pt. 175) 452 at 469, where the Court of Appeal, per EKPE JCA, held that a master can terminate the contract of employment with his servant at any time and for any reason or for no reason at all. See also TEXACO NIG. PLC vs. KEHINDE (2002) FWLR (Pt. 94) 143 at 160. It can therefore not be denied that the 1st defendant has the right to dismiss the claimant from its employment. I shall now turn to determine whether in the exercise of the right to dismiss the claimant, the 1st defendant complied with the prescribed procedure in Exhibit C6. The provision for dismissal is contained in paragraphs 11.8 to paragraph 11.8.5 of Exhibit C6 under the title “DISMISSAL”. The portions relevant to this issue are in paragraphs 11.8.3 to 11.8.5 thereof. It is provided in these paragraphs as follows- “11.8.3. A staff of the union may also be summarily dismissed on the following grounds: a. ---------- b. --------- c. Misconduct and/or corruption whether or not in relation with the performance of his/her duties in the union d. ------- e. ------- 11.8.4 No notice or salary in lieu of notice shall be given to a staff dismissed from misconduct but dismissal shall take effect from the date of which the staff concerned is notified that he/she has been dismissed. 11.8.5. A staff dismissed for misconduct/corruption shall not be eligible for any entitlement and shall vacate the union premises immediately. In all cases, before the disciplinary action is handed down, the staff shall be given a fair trial and the right of appeal.” From the provision of Exhibit C6 with respect to dismissal as set out above, it is obvious the claimant can be dismissed for misconduct or issues bordering on corruption. As for the procedure to be followed before the claimant is dismissed, Exhibit C6 does not state any express procedure which the 1st defendant ought to follow in dismissing the claimant. The condition of service only prescribes that the claimant be given fair trial and a right of appeal. As seen in Exhibit C6, one of the grounds for which the 1st defendant is permitted to dismiss its staff is on ground of misconduct or corruption. Was the claimant dismissed for misconduct or corruption? Exhibit C10 contain that the claimant was dismissed “…based on your admission that you misappropriated and unlawfully utilised for your own personal purpose the sum of Twenty Nine Million, Seven Hundred and Fifty Thousand naira (N29,750,000.00) belonging to the Union without the consent or approval of the union and any of its organs”. Although the reason given in Exhibit C10 for dismissing the claimant was not expressly stated to be “misconduct” or “corruption”, a look at the reason however reveals that the claimant was dismissed for acts of dishonesty or fraud against the 1st defendant. Do these acts amount to either misconduct or corruption? In EZE vs. SPRING BANK PLC (SUPRA) at 1089, the Supreme Court held that in master and servant relationship, “An employer is entitled in such employments to dismiss an employee for misconduct. Misconduct is of varying degree. It cannot now be disputed that in a mere master and servant relationship, the servant may obviously be dismissed for dishonesty or fraud in his employment”. Also, paragraph 1.4 (t) of Exhibit C6 defined corruption to include among others, embezzlement of union fund. On these authorities, there is no doubt therefore that the acts of the claimant for which he was dismissed amounted to both misconduct and corruption. The defendants, on the strength of the allegation made against the claimant and in view of the condition of service in Exhibit C6, are entitled to dismiss the claimant. In dismissing the claimant, did the defendants afford him fair trial as directed by the condition of service? In the provision of the condition of service on dismissal as set out above in this judgment, the claimant was expected to be given fair trial before he was dismissed. It is observed that the condition of service did not prescribe what fair trial entails or the procedure for the trial. The claimant has now complained he was not given fair hearing before he was dismissed. In his evidence, the claimant testified that he was given a query on 24th July 2012 and he was required to answer to it the same day. He also testified that he answered the query under duress. It is his further evidence that he was not aware of any investigative committee neither did he appear before the said committee. In support of the defendants’ contention that the claimant was given fair hearing, DW1 told this court that before a query was issued to the claimant, there was a meeting attended by the claimant where the fraud at Rivers State wing was discovered. It must be mentioned here that the claimant did admit that he was in that meeting. According to DW1, it was after the discovery that the claimant was issued a query to explain his involvement in the fraud and he answered it at his own will. In his reply to the query, the claimant admitted that he took part in the fraud and a committee was subsequently set up to investigate the fraud at the Rivers State wing of the 1st defendant. The claimant appeared before the committee on 31st July 2012 and he further admitted his involvement in the fraud to the tune of N29,750,000 before the committee. The report of the committee was admitted in evidence as Exhibit D1. In master and servant relationship, fair hearing is not more than disclosing the allegation to the employee and giving opportunity to the employee to answer to the allegation. In NATIONAL BANK OF NIGERIA vs. OMOTAYO (2002) FWLR (Pt. 114) 454 at 466, it was held that- “To satisfy the rule of natural justice and fair hearing, a person likely to be affected by a disciplinary proceeding must be given adequate notice of the allegation against him to enable him make a representation in his own defence”. Further, at the same page of the report, the court commented thus- “In this case, the plaintiff was given fair hearing when the defendant issued him a query which was answered by the plaintiff/respondent before a decision was taken against him” Again, in NEPA vs. ENYONG (SUPRA) at 472, it was held as follows- “ I think it is on the basis of this emphasis of fair hearing that the Supreme Court decision in the recent case of Osakwe vs. Nigeria Paper Mills Ltd (1998) 10 NWLR (Pt. 568) 1, can be explained. There it was held that where an employee is confronted with an allegation of crime by the employer and the former is given an opportunity of explaining himself, then he cannot later turn around to say he was not given a fair hearing” From the evidence before this court, I can deduce that the claimant was in the meeting where the fraud was uncovered, he was issued a query, he answered the query, a committee investigated the allegations and the claimant made representation to the committee including his written representation attached to Exhibit D1 as “EV1”. The claimant has however attempted to throw doubt around his reply to the query, Exhibit C9, on the ground that he made it under duress. He has also denied neither ever appearing before the committee nor making annexure EV1 of Exhibit D1. The claimant has not said he did not make Exhibit C9. In fact, under cross examination, he said he was the one that signed it. All he appears to be saying is that the circumstance under which he made it was uptight. I have read exhibit C9 and the content appears to flow from the knowledge of the claimant. I cannot therefore fathom the claimant’s contention that he wrote Exhibit C9 under duress. He possibly could not have been coerced to write down facts which are from within his knowledge on the activities in the River State Wing of the 1st defendant when he was there. That it was the claimant who made Exhibit C9 is what matters and not the circumstance under which he made it. In the said exhibit, the claimant’s reply to the query, he did admit that some officials of the 1st defendant’s Rivers State wing have been perpetrating fraud in respect of dues meant for the 1st defendant and stated sums which each official, including him, had received on account of the fraud. Exhibit D1 is the report of the committee that investigated the fraud in the 1st defendant’s Rivers State Wing. Page 2 of the report contain that the claimant appeared before the committee on 31st July 2012 at 4.57pm. When the committee told him about their task, the claimant said he had nothing to hide as he has already told everything in his reply to the query and he submitted a copy of the reply to the committee. The committee then asked him to hand in a written representation and he did. The written representation is annexed to Exhibit D1as EV1. The annexure EV1, dated 30th July 2012 and addressed to the chairman of the committee, contains similar content as Exhibit C9. In EV1, the claimant also admitted the fraudulent acts. In his reply to the statement of defence/counter claim, the claimant asserts that he was neither aware of any investigation committee nor appeared before any committee set up by the 1st defendant. According to the claimant, as at 31st July 2012 when he allegedly appeared before the committee, he was on admission at the University of Port Harcourt Teaching Hospital. He tendered Exhibit C13 to support his claim. The claimant also disclaimed EV1. The claimant contended that EV1 was forged by the defendant as the signature on it is not his own. Exhibit D1 is the report of the committee set up by the 1st defendant to investigate its River State wing. Whether or not the claimant appeared before the committee should not be an issue to dissipate energy trying to find out. The question should be whether the claimant made representation to the committee in respect of the allegation against him. The defendants have averred that the claimant submitted EV1 to the committee but the claimant has disclaimed the document as his own. I am constrained at this point to form an opinion as to whether it was the claimant who made EV1. Where a court is to resolve a denial by a part who is alleged to have written or signed a document, one of the options open to the court is for the court to compare the writing or signature admitted by that person as his own with the one disputed by him. In ADENLE vs. OLUDE 2003 FWLR Pt. 157 1074 at 1085, the Supreme Court held that it is usual for the courts to form their opinion as to handwriting by comparing a genuine specimen with a disputed one. It should be said here that the claimant admitted that he wrote Exhibit C9. Under cross examination, he said he signed Exhibit C9 and also signed his statement on oath before this court. EV1 has almost the same content as Exhibit C9 and a careful examination of both documents reveal the hand writing is that of the same person. It thus means the document was written by the writer of Exhibit C9. I have also compared the signature on both documents and they appear to be the same. I have further compared the signature on EV1 and Exhibit C9 with that of the claimant in his witness statement on oath and I have observed that they are all the same. From these comparisons, I have no difficulty incoming to the conclusion that the claimant made EV1. The question is: To whom and for what purpose did he make EV1? The letter was addressed to the chairman of the committee and somewhere on the last page, the claimant wrote: “However sir, we have sinned and fallen short of the glory of God, we only implore your honourable committee to grant us pardon as we promise to sin no more”. If the claimant did not make EV1 to the said committee as contended by him, then to whom did he make it? I am convinced the claimant made EV1 to the committee. He cannot now, in this proceeding, deny knowledge of the committee and also disclaim a letter written under his hand and signature. Evidence before this court has disclosed that the claimant was confronted with the allegation and he put in his responses, mostly admitting his involvement in the fraud, it is my view that he was given fair hearing. Therefore, the obligation placed on the defendants in paragraph 11.8.5 of Exhibit C6 does not exceed having to disclose the complaint to the claimant and that he should be given a chance to react to them. In this case, it is evident from the record that the claimant was given an opportunity to defend himself before he was dismissed. The claimant was informed of the allegation in the query and he was requested to explain his role. He was also allowed to make representation before the committee before he was dismissed. It is obvious that the claimant, before his dismissal on ground of misconduct, was given fair hearing. His compliant of denial fair hearing is therefore unfounded. Be that as it may, the Supreme Court has put the law quite clearly in OSAKWE vs. NIGERIAN PAPER MILL (1998) 7 SCNJ 222 at 231 that in the relationship of master and servant, what determines wrongfulness of a dismissal is the contract of service and not the notion of fair hearing. Therefore, from my examination of the contract of service, Exhibit C6, in relation to the complaint of the claimant, I cannot find any of its provision that was breached in the dismissal of the claimant. The provisions of a written contract of service binds the parties to it and it is outside the province of the court to look elsewhere for the terms of termination of the contract other than in the written agreement. Therefore, in this case, the contract of service is the bed-rock upon which the claimant must found his case and he succeeds or fails upon the terms of the contract of service. This court will not look outside the terms in the contract in deciding the rights and obligations of the parties in this suit. See NEPA vs. ENYONG (SUPRA) at 468; MOMOH vs. CBN (2007) All FWLR (Pt. 395) 420 at 434. The only situation where a party to a contract of employment can successfully seek redress in court is where the terms of the employment are breached. In TEXACO OVERSEAS NIG PETROLEUM CO. UNLTD vs. OKUNDAYE (2003) FWLR (Pt. 136) at 968-969 it was held that in purely master and servant relationship, the court will not interfere in disputes arising from the employment if the terms of the employment have not been breached by the employer. In this case, I have not seen any breach of the terms of the employment in the dismissal of the claimant. I find no reason to interfere with the claimant’s dismissal. His dismissal is not in breach of the condition of service and it is therefore not wrongful on this ground. Another aspect of this issue that must be considered is whether the defendants have been able to justify the dismissal of the claimant. The law is settled that an employer is entitled to terminate or dismiss an employee from employment at any time and without stating any reason. However, where an employer gives a reason for the dismissal, that reason must be justified at trial otherwise, the dismissal will be considered to be wrongful. See OSISANYA vs. AFRIBANK NIG PLC (2007) All FWLR (Pt. 360) 1480 at 1491 It is obvious in Exhibit C10 that the basis for dismissing the claimant was upon his own admission to the fraud. The portion of Exhibit C10 reads: “After a careful consideration of the report of the committee that investigated the allegation of fraud/maladministration in NUT Rivers State Wing, the National Executive Council of the Nigeria Union of Teachers took a decision to dismiss you from the service of the Nigeria Union of Teachers with effect from 2nd October 2012 based on your admission that you misappropriated and unlawfully utilised for your own personal purpose the sum of Twenty Nine Million, Seven Hundred and Fifty Thousand Naira (N29,750,000.00) belonging to the Union without the consent or approval of the union and any of its organs.” On the portion quoted above, I have underlined the part that formed the crux or the reason the claimant was dismissed. The dismissal letter referred to the report of the investigation and based the dismissal on the admission by the claimant to the allegation. I have earlier in this judgment examined Exhibit D1 together with its EV1 and Exhibit C9. It is my view that the claimant has admitted culpability in the fraud in these exhibits. In Exhibit D1’s EV1 particularly, the claimant did state that his total financial implication in the monies shared is N29,750,000.00. His dismissal was based on this admission. The claimant’s dismissal having been based on his admission, the defendants are no longer under duty to prove the reason for the dismissal. In TEXACO OVERSEAS NIG PETROLEUM CO. UNLTD vs. OKUNDAYE (2003) FWLR (Pt. 136) at 975, it was held that an employer is entitled to dismiss summarily his employee whom he found to be dishonest but unless the employee admits the dishonesty, the employer must prove it. See also OLAREWAJU vs. AFRIBANK NIG PLC (2001) FWLR (Pt. 72) 2008. Therefore, since the dismissal of the claimant was based on his admission to the fraud made under his hand, which documents have been placed before this court, the defendants have justified the dismissal of the claimant. It is settled principle in master and servant relationship that where an employee omits to do something or commits an act which is injurious to the business of his employer and is incompatible with the faithful discharge of his duties, it is justifiable for the employer to dismiss him. See EZE vs. SPRING BANK PLC (SUPRA) at 1090. In the case of YUSUF vs. NATIONAL TEACHERS INSTITUTE (2002) FWLR (Pt. 129) 1509 at 1526, it was held that- “There are no fixed rules of law defining degree of misconduct which would justify a dismissal. It is enough that the conduct of the servant is of grave and weighty character as to undermine the confidence which would exist between him and master. Working against the deep interest of the employer clearly amounts to gross misconduct entitling the employer to peremptorily dismiss the employee irrespective of the condition of service”. From the evidence before this court, particularly the evidence of DW1, the evidence of the claimant in cross examination and the claimant’s admission in Exhibit C6 and D1, it has been shown that the 1st defendant was being defrauded of dues meant for it at the Rivers State wing and at the time the claimant was an employee at the wing and he did benefit from the fraud. This act has led to loss of revenue by the 1st defendant. In my view, the allegation against the claimant, and was admitted by him, amounted to acts of gross misconduct and the defendants are justified to dismiss him from the employment. The claimant has also complained that he was not tried in a court of law for the crime he was alleged to have committed nor was he reported to police before he was dismissed. This nature of complaint no longer finds support in the law of master and servant. It is no longer the law that where an employee commits acts of gross misconduct against his employer which acts also disclose criminal offences under any law; the employer has to wait for the prosecution of the employee for such criminal offences before proceeding to discipline the employee under the contract of service. In EZE vs. SPRING BANK PLC (SUPRA) at 1089 the Supreme Court stated the law thus “It cannot now be disputed that in a mere master and servant relationship, the servant may obviously be dismissed for dishonesty or fraud in his employment. The master does not have to report the matter to police let alone wait for prosecution to be done. He does not even have to reach a decision on the alleged crime. Once he is satisfied that the servant has done something which is incompatible with the faithful discharge of his duty or has displayed conducts such that would be injurious to the master’s business to retain him, the master may dismiss the servant” See also UZONDU vs. UBN PLC (2008) All FWLR (Pt. 443) 1389 at 1399 where it was held that it is not compulsory for an employer to ensure prosecution of employee for the commission of a crime before dismissing him, particularly where the employee admits to the crime. Therefore, the defendants were right to have dismissed the claimant without first prosecuting him on the criminal allegation. I now turn to examine the effect of Exhibit C11 on this matter. The exhibit, which was tendered by the claimant, shows a suit filed before the Enugu Division of this court on the 30th day of August 2012 between the claimant and the defendants herein. In his evidence, the claimant stated that the suit in Exhibit C11 was already pending when he was dismissed from employment. In his written address, the claimant’s counsel submitted at page 6 thereof that Exhibit D1 was made during the pendency of the suit in Exhibit C11 as such lis pendens applies to affect the admissibility of Exhibit D1. While counsel made reference to some facts not pleaded or in evidence, he urged the court to expunge Exhibit D1. I must say that it is not too clear to me the reliance the claimant seeks to place on the exhibit in this suit. The claimant merely told this court the suit was pending when he was dismissed. What is the situation of that suit now? Is it still pending? If it is still pending, in view of the parties and the similar reliefs sought, will this instant suit not amount to abuse of court processes? These questions have become necessary due to the limited facts presented before this court regarding Exhibit C11 in the pleading and evidence of the claimant. However, from the submissions of his counsel at page 6 of the written address, I can understand that the suit in Exhibit C11 was no longer pending at the time this instant suit was filed. If I take the claimant’s submission to be the position of the suit in Exhibit C11, then what is its effect on this suit? It seems to me the claimant’s contention is that it is wrongful for the defendants to dismiss him while the suit in Exhibit C11 was pending in court. The answer is simple. As stated earlier, the 1st defendant has the right, under the contract of service, to dismiss the claimant from its employment. The claimant has not shown this court any order proceeding from the suit in Exhibit C11 restraining the 1st defendant from exercising its right under the contract. Assuming without so holding that there was such an order and the defendants have breached it, this court is not the appropriate forum to make the complaint. It should be to the court who issued the order. Be that as it may, this instant suit is a fresh and independent matter on its own and since the claimant’s dismissal was done prior to this suit, there is no way this court can disturb the dismissal on the basis of Exhibit C11. The claimant’s counsel, in his submissions at page 6 of his address, seems to treat this case as the same with that in Exhibit C11 and argued that Exhibit D1 is not admissible in this suit as it was made during the pendency of proceedings. The exhibit was made about August 2012 and this suit was filed in May 2013. Exhibit D1 may not be admissible in the Exhibit C11 suit if sought to be tendered in that case since it was made during the pendency of that case. This is a different case altogether from that in Exhibit C11. Exhibit D1 is admissible in this case. I find no effect whatsoever of Exhibit C11 on the dismissal of the claimant. In a master and servant relationship, a dismissal of the employee by the employer cannot be declared null and void. The employee’s remedy, where the termination of the appointment or dismissal is found wrongful, can only be in award of damages. In the final analysis of this issue, I find and hold that the dismissal of the claimant from the employment of the 1st defendant is not wrongful as it is in accordance with the contract of service. ISSUE TWO: The claimant seeks a declaration that he is entitled to all his outstanding salaries and other entitlement from June 2012 till the date of judgment in this suit or until his employment is lawfully terminated. In proof of this claim, the claimant testified that his monthly salary, upon his transfer to the 1st defendant’s head office at Abuja, was the sum of N216,380.16. On resuming office upon his redeployment, his salary for June and July were delayed without any reason and he was later told by his bankers, U.B.A Plc., that although his June 2012 salary had been paid, the 1st defendant has instructed them not to allow him access to the money. The claimant testified that his salaries for June, July and August 2012 were not paid to him. On their part, the defendants admitted the claimant has not been paid his salary for June and July 2012 but contended that the claimant is indebted to the 1st defendant to the sum of N29,750,000 less the sum of N432,760.32 being his two months’ salary for the month of June and July, 2012. What the defendants are contending in effect is that the claimant is not entitled to his 2 months’ salary, in the sum of N432,760.32, as it has been used to offset part of the debt owed to the 1st defendant. It is therefore clear that the claimant has not been paid his salaries for the months of June and July 2012. From the evidence, particularly Exhibit C10, the claimant’s dismissal took effect from 2nd October 2012. The parties are particular about the salaries for June and July but no mention was made of his salaries for August and September 2012 before he was dismissed. It however appears clear to me from the 3rd relief sought by the claimant that he has not been paid any salary from June 2012 up till the date he was dismissed. It is nowhere disclosed in the evidence of the parties that the claimant was under any form of disciplinary action before his dismissal. By the provision of the contract of service, Exhibit C6, the dismissal of an employee takes effect from the date the dismissal is communicated to the employee. This is as contained in paragraph 11.8.4 of Exhibit C6. In this case, Exhibit C10 was given to the claimant on 2nd October 2012. It is from that day the claimant ceased to be an employee of the 1st defendant. By the condition of service, the claimant is entitled to his salaries which have accrued to him up to date of his dismissal. Therefore, the claimant is entitled to his salaries for the months of June to September 2012 However, this court is unable to declare the claimant’s entitlement to salaries from the date of his dismissal up to date of judgment. This is because it has been agreed between the parties in the condition of service, paragraph 11.8.5 thereof, that any employee dismissed for misconduct or corruption shall not be eligible for any entitlement upon dismissal. Furthermore, since the dismissal of the claimant has been found in this judgment to be proper and in accordance with the condition of service, there is no way he can be entitled to salaries for period he was no longer in the employment. An employee, who has been dismissed, whether lawfully or otherwise, cannot claim for wages for service he never rendered. See NATIONAL BANK OF NIGERIA vs. OMOTAYO (SUPRA) at 466. On this authority, it is my view, and I so hold, that the claimant is not entitled to salaries from October 2012 when he was dismissed from the 1st defendant’s employment. The defendants’ have shown that the claimant’s salaries, which he was entitled before his dismissal, were used to offset some of his debt to the 1st defendant. Whether the defendants are justified in that action will depend on their ability to prove the debt against the claimant. I will examine this issue when I am resolving issue 4 of this judgment. ISSUE THREE: In line with pleaded facts, the claimant testified that the dismissal letter issued to him was libelous and it was meant to rubbish his name and portray him as a fraudster, a cheat and untrustworthy. After the dismissal letter was issued to him, the defendants also published in the 1st defendants’ offices at Abuja and Rivers State where it was read by members of the public. The claimant has consequently suffered injury as he had been exposed to ridicule and public hatred. Obviously, it is upon these facts the claimant has sought this court to declare that the dismissal letter is libelous and to order the defendants to retract the libelous content of the letter. In their statement of defence, the defendants have challenged the jurisdiction of this court to entertain the claimants’ claim of libel and they urged this court to strike out such claims From the facts and the evidence in support of the claimant’s case, as have been set out in this issue, reliefs 4 and 5 of the complaint are claims in tort of defamation. The matters on which this court is permitted to exercise jurisdiction in section 254C of the 1999 Constitution (as amended) does not extend to actions in tort, and this court will be acting ultra vires the constitution if it proceeds to determine the claimants claims on libel. I am in agreement with the defendants that this court lacks jurisdiction with respect to the claimants’ reliefs 4 and 5. These claims are not competent before this court and they are accordingly struck out. ISSUE FOUR: The defendants have counter claimed against the claimant for a declaration that the claimant is indebted to the defendants to the tune of N29,317,239.68 being the sum of N29,750,000 embezzled by the Claimant less the sum of N432,760.32 being his two months’ salary for the months of June and July, 2012 and the sum of N29,317,239.68 being special damages for the loss suffered by the defendants from the acts of corruption and embezzlement committed by the claimant. Simply put, the defendants are seeking a declaratory relief and special damages. In view of these reliefs sought by the defendant, the question to ask at this point is whether they are entitled to them. According to the defendants, the claimant is indebted to the 1st defendant to the sum of N29,750,000 less the sum of N432,760.32 being his two months’ salary for the month of June and July, 2012. In effect, the defendants contend that the claimant owes them the sum of N29,750,000 and the claimant’s salary for June and July 2012 was applied to offset some of the amount. It is on the outstanding sum of N29,317,239.68 the defendants now seek the pronouncement of this court. In the testimony of DW1, no evidence was adduced on how the debt of N29,750,000 claimed by the defendants accrued against the claimant save the evidence of the discovery of fraud in Rivers State Wing of the 1st defendant. The only evidence relied on by the defendants to support the sum in question is Exhibit D1, particularly annexure EV1 thereto. It is defendants’ case that by the said annexure EV1 of Exhibit D1, the claimant had admitted to being indebted to the defendants to the tune of N29,750,000 and he promised to pay the sum. I have observed that beside this EV1, the defendants have not shown any other evidence categorically establishing the debt in the amount in question against the claimant. I have held earlier, while resolving issue 1 of this judgment that I am satisfied that the claimant made EV1. But did the claimant admit being indebted to the defendants to the tune of N29,750,000 in EV1? In the document, the claimant explained the fraudulent activities in the Rivers State wing and stated in the conclusion that: “The sum of my financial implication are ----- N29,750,000”. Can this statement be taken to be an admission that he is indebted to the defendants to the tune of N29,750,000? I think not. Admission of liability is an exact conduct flowing from one party to the other and it must be unequivocal in all respect. In ASABA TEXTILE MILL PLC vs. BONA TEXTILE LTD (2007) All FWLR (Pt. 364) 336 at 356, it was held that before an admission can be relied on, it must be full, clear and unequivocal. See also REYNOLDS CONSTRUCTION CO. NIG. LTD vs. OKWEJIMINOR (2002) FWLR (Pt. 121) 1934 at 1943. I cannot find anywhere in the document where the claimant said he is indebted to the 1st defendant to the sum or where he promised to pay the said sum to the 1st defendant. The claimant has even in his reply and defence to counter claim denied ever admitting owing the claimant the sum alleged against him. The only evidence the defendants have adduced on the sum alleged against the claimant is the claimant’s said admission in EV1 of Exhibit D1. There is no other evidence to show the claimant’s indebtedness to the 1st defendant to the tune of N29,750,000. In his cross examination, the claimant admitted that he was given N3,000,000 and N1,050,000 at different times. Outside these sums admitted by the claimant during the trial of this suit, there is no other evidence adduced by the defendant pointing positively to the liability of the claimant to the sum of N29,750,000. Where a party seeks a declaratory relief, the party has to prove his entitlement to the relief. A declaration cannot be made upon an admission. See CHEMIRON INT’L LTD vs. EGBUJUONUMA (2007) All FWLR (Pt. 395) at 454. Reliance by the defendants on the admission of the claimant in EV1 is not sufficient to grant the declaration sought. Therefore, in the absence of proof of the indebtedness of the claimant to the sum, I am unable to grant the declaration sought by the defendants. Following the declaration sought, the defendants proceeded to claim the sum of N29,317,239.68 as special damages against the claimant for loss suffered by the defendants from the corrupt act of the claimant. Now, the sum claimed from the claimant is the same sum the defendants have alleged the claimant is indebted to the defendants. The defendants have now claimed the sum by way of special damages. Special damages are not granted as a matter of course. To be entitled to it, the defendants are expected by law to specifically plead the claim and then strictly prove same by credible evidence. See USMAN vs. ABUBAKAR (2001) 12 NWLR (Pt. 728) 685. The defendants have saddled themselves with this task when they chose to claim the sum as special damages. In determining the defendants claim for special damages, a look at the statement of defence and the evidence of DW1 reveal that the requirements of the law has not been met. The defendants did not plead and particularize anywhere in the statement of defence/counterclaim particulars of each instance of the fraud cumulating to the sum claimed from the claimant neither were these facts shown in the evidence of DW1. What the defendants have consistently banked on in respect of the alleged indebtedness of the claimant is the annexure EV1 of Exhibit D1. Save for the said document, it appears to me the defendants themselves do not know the total amount involved in the fraud or the amount of the claimant’s involvement. It will explain the defendants’ failure to plead particulars of the sum alleged against the claimant. Consequently, I find that the defendants have not been able to establish the special damages claimed against the claimant. The defendants counter claim therefore fails and it is accordingly dismissed. Consequently, the defendants are no longer justified in holding unto the claimant’s salaries for the months of June, July August and September 2012. Having thus held, I find it necessary to determine the sum payable to the claimant as his salaries for the months of June, July, August and September 2012. There appears to be no dispute between the parties as to what is the Claimant’s monthly salary. The Claimant in his Complaint and Statement of Facts has stated his monthly salary to be N216,380.16. The Defendants also have variously stated in their pleadings, evidence and address that the sum of N432,760.32 represents two months’ salaries for June and July 2012 which they had withheld to offset part of their counterclaim. One month’s salary, being half of the said sum, is N216,380.16. This means there is no dispute between the parties as regards what is the claimant’s monthly salary. Therefore, the Claimant’s salaries for the months of June, July, August and September (four months) add up to (216,380.16 x 4) N865,520.64. I so find and hold. By the recent Supreme Court authority of HON. CHIGOZIE EZE & 147 OTHERS vs. GOVERNOR OF ABIA STATE & 2 OTHERS (SC 209/2010), in a judgment delivered on the 11th day of July 2014; and which is in line with the provisions of Section 14 of the NIC Act, the Claimant having been adjudged to be entitled to his four months’ salaries, it is necessary to make a consequential order. In conclusion of this judgment, I hold as follows- 1. The claimant’s reliefs 1 and 2 and his claim for general damages are dismissed while reliefs 4 and 5 are struck out. 2. As for relief 3, it is granted in part, only to the extent that the claimant is entitled to his salaries for the months of June 2012 to September 2012. 3. The defendants are hereby ordered to pay to the Claimant within 30 days from the date of this judgment, the sum of N865,520.64 (Eight Hundred and Sixty Five Thousand, Five Hundred and Twenty Naira, Sixty Four Kobo) only, being four months salaries for the months of June, July, August and September 2012 at the rate of N216,380.16 (Two Hundred and Sixteen Thousand, Three Hundred and Eighty Naira, Sixteen Kobo) per month. 4. The defendants counter claim is dismissed. Parties are to bear their costs. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge