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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP……HON. JUSTICE B.A. ADEJUMO, OFR (PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA) DATE: 12TH FEBRUARY, 2015 SUIT NO. NICN/LA/467/2013 BETWEEN: MRS. SAIDAT ABIOLA AMBALI……………………………CLAIMANT AND GOLDEN CAPITAL LC………………………………………DEFENDANT REPRESENTATIONS: 1. O. O. EMMANUEL, ESQ; ……………… FOR THE CLAIMANT 2. A. OLUWOLE, ESQ; ……………………. FOR THE DEFENDANT JUDGMENT This suit was commenced by a complaint dated the 29th August, 2013 and filed the same date. It was accompanied with a Statement of Facts, the Claimant’s List of Witnesses, the Claimant’s Witness Statement on Oath, and the Claimant’s List of Documents. The reliefs claimed in the aforesaid Statement of Facts are as listed hereunder: (15) WHEREOF the Claimant prays the Court for the following: (a) An order declaring the purported suspension of the Claimant by the Defendant’s Managing Director, and the eventual purported termination of the Claimant’s appointment by the Defendant’s Chairman as being improper and unlawful. (b) Special damages in the sum of N10 Million Naira only. (c) General damages in the sum of N20 Million Naira. (d) The Cost of filing this suit which is in the sum of N2 Million Naira. To the above, on the 19TH day of September 2013, the defendant filed a Statement of Defence alongside with Witness Statement on Oath, and the Defendant’s List of Documents. On the 5th day of November 2013, the claimant filed a Reply to the Defendant’s Statement of defence, as well as Claimant’s Further Written Statement on oath, and Claimant’s Further List of Documents. The defendant filed its Defendant’s Final Written Address on the 28th May, 2014 while the Claimant’s Final Written Address was filed on 5th September, 2014. The defendant’s Reply on Points of law to the Claimant’s Final Written Address was filed subsequently on the 10th of October, 2014. That is all about the processes filed in this case. The case was opened on the 12th February, 2014 with the claimant testifying on behalf of herself as CW. CW tendered the following documents without objection: 1. The Witness Statement on Oath made on 29th day of August, 2013 admitted as Exhibit CW1 – CW1C; 2. The letter of offer of employment dated December 28 2009 and addressed to Mrs. Abiola Ambali admitted as Exhibit CW2 – CW2(a); 3. An internal memo dated 13 April, 2012 and addressed to Mrs. Saidat Abiola Ambali by the Managing Director of the defendant admitted as Exhibit CW3; 4. A letter by solicitor dated 14th June, 2012 and addressed to the Chairman Board of Directors of the defendant admitted as Exhibit CW4 – CW4(d); 5. A letter captioned Termination of Appointment on the letter head of the defendant addressed to Mrs. Saidat Abiola Ambali and dated 27th June, 2012 admitted as Exhibit CW5 – CW5(b); 6. The claimant’s further witness statement on oath filed on 5th November, 2013 admitted as Exhibit CW6 – CW6(f); 7. A certificate issued by the Institute of Chartered Accountant of Nigeria to Mrs. Saidat Abiola Yisa dated 24th day of April, 2013 with Cert. No. AC16912 admitted as Exhibit CW7; and 8. A document titled “Code of Corporate Governance in Nigeria” and subtitled “Security and Exchange Commission” admitted as Exhibit CW8AA – CW8AA57. The examination-in-chief was brought to an end. And the defendant’s counsel proceeded to cross examine the claimant [CW]. CW replied that she was first offered a probational employment as an interim internal auditor on July 8, 2009 and that the appointment was confirmed in August 2010. She replied that it took her employer eight months to confirm her appointment. She said she was employed to strengthen the Corporate Governance Practice of the defendant’s company. She replied that the defendant was under statutory obligation to employ an internal auditor. CW retorted that the defendant was under obligation prescribed by both the Security and Exchange Commission [SEC] and the Company and Allied Matters Act [CAMA]. CW said her mandate was to perform the functions enumerated in Exhibit CW2. She agreed that she was subject to the rules of the defendant’s company. She agreed that her employment with the defendant is not governed by statutes but that rather it was governed by the Code of Corporate Governance for Public Companies in Nigeria [SEC Code] and the CAMA. She said her obligation is first to her employer and subsequently to the SEC and the Nigeria Stock Exchange. She said in every organisation, they have internal and external auditors. She said external auditors are chartered accountants that work in auditing firms such as Akintola Williams, Price Water House etc. She said her appointment as internal auditor was made by the Board of Directors. She said she disagreed that her employment is not covered with statutory flavours. She said she is an internal auditor and not an external auditor. On further cross examination, CW stated that she had made several reports to the Company’s Board of Directors. She stated that the financial position of the company when she joined it in 2009 was very poor; and that many things went wrong. She said the stock arm of the defendant was very bad in early 2012 because there were a lot of mismanagement by the management. She said the financial position of the company as at the time she was leaving was not as a result of her abuses or inaction because she was not the stock brokers; and that the company employed three stock brokers. She said she was not aware that the company was queried by SEC; and that she was never for once accused of misleading the Board. She also said when she was with the defendant’s company she was answering all memos sent to her. She replied that the MD/CEO of the defendant had no right to suspend her because she reported to the Board. She said she had a letter to that effect which is in her former office and that she was not allowed access to the office. She said she wrote through her counsel to the Chairman of the board that the MD/CEO of the company had no right to sack her. She said she did not owe her former employer. She said rather the company owes her and that her counsel had written a letter of demand to the company. She also said she owes no debt to any of the subsidiaries of the company. She said the value of the car lease she took from the company was over three million of which she paid after collecting salaries. She replied that she disagreed with the position that she failed in paying back; and that this was the genesis of her problem with the company. She said she agreed that her employment was governed by the service agreement. The cross examination was brought to an end. There being no re-examination, the case was adjourned to 28/03/14 for the defence to open its case. The case came up as adjourned. The defence opened its case with one Mr. Oluwadare Oladipo Olukosi testifying for the defendant as DW. DW said he is the company secretary of the defendant. The following documents were tendered by DW without objection: 1. The witness statement on oath deposed to by the DW admitted as Exhibit DW1 – DW1B; 2. Letter of employment on the letter head of Golden Capital dated December 28, 2009 and signed by Lekan Ogunleye [MD/CEO] admitted as Exhibit DW2 – DW2A; 3. Letter on the letter head of Golden Securities Plc dated July 7, 2009 and captioned “Offer of Contract of Employment” signed by Lekan Ogunleye [GM/CEO] and addressed to Miss Yisa Saidat Abiloa admitted as Exhibit DW3 – DW3A; 4. An internal memo boldly written Golden Capital Plc addressed to Abiola Ambali [Mrs.] captioned “Confirmation of Appointment” dated 10th August 2010 admitted as Exhibit DW4; 5. A document titled “Application for a Month Moratorium on Lease Asset” dated 12th December, 2011 and addressed to Mr. Michael Siyanbola which emanated from Mrs. Abiola Ambali admitted as Exhibit DW5; 6. A document on the letter haed of Golden Capital Plc dated 17th February, 2012, addressed to all members of staff and captioned “Procdure for Claiming/Retiring Petty Cash Expenses/Imprests” admitted as Exhibit DW6; 7. A document on the letter head of Golden Capital Plc which emanated from the Mnaging Director and dated 22/03/12 and captioned “Internal Audit Stamp” admitted as Exhibit DW7; 8. A document dated 7 March, 2012 captioned “Audit Committee’ Report and another document at the second page of same admitted as Exhibit DW8 – DW8A; 9. A document on the letter head of Golden Capital Plc internal memo captioned “Internal/Control Brief and Manual” dated 12 March, 2012 admitted as Exhibit DW9 – DW9B; 10. A bundle of documents addressed to MD/CEO captioned “Internal Audit/Control Manual” admitted as Exhibit DW10 – DW10A; 11. A document on Golden Securities Ltd’s internal memo dated 19th Mrach, 2012 captioned “Stamp Pad for Internal Audit” signed by Shehu Salami admitted as Exhibit DW11; 12. A document dated 02/04/12 captioned “Warning” admitted as Exhibit DW12; 13. A document titled “Pre-Audit Function on Group Expenses/Payments by Internal Audit Department” admitted as Exhibit DW13; 14. A document on the letter head of Golden Capital Plc internal memo addressed to Mrs. Saidat Abiola Ambali dated 13th April 2012 and captioned “Suspension” admitted as Exhibit DW14; 15. A document dated 27/06/12 addressed to Mrs. Saidat Abiola Ambali captioned “Termination of Appointment” admitted as Exhibit DW15 – DW15A; 16. A bundle of documents boldly written “Board Committee on Banking Supervision” dated December 2011 admitted as Exhibit DW16 – DW16W; 17. A addressed to Saidat Abiola Ambali captioned “Default on Lease Rentals” admitted as Exhibit DW17 – DW17D; and 18. A bundle on the letter head of Golden Capital Plc internal memo dated March 2012 captioned “Warning” admitted as Exhibit DW18. The defendant’s examination-in-chief was brought to an end. Thereafter, the matter proceeded to cross examination. DW retorted that Golden Capital is a public company. He said it is correct that Part A of exhibit CWAA5 apply to public company. He said our company has an audit committee. He said the claimant’s functions are clearly set out by her letter of appointment. He said the claimant’s duty is limited to what is contained in paragraph 2 of the “Offer of Appointment” dated 8th December, 2009 [Exhibit DW2 – DW2A]. He said the claimant was responsible to the Managing Director. He agreed that the claimant’s appointment was terminated after her confirmation. He said the appointment was terminated by the Managing Director because of her unruly behaviour and disobedience to carry out lawful instructions of the defendant. He said they had evidence of queries issued by SEC but that they do not have the evidence with them at the Court. He said he did not have any auditing knowledge. The cross examination was brought to an end. There being no re-examination, the matter was adjourned to 30/06/14 for adoption of final written addresses of the parties. However the matter came up next on the 2nd of July, 2014. On this date however, the matter could not proceed as parties were yet to turn in their final written addresses. Meanwhile, the defendant’s Final written Address filed out of time was deemed properly filed and served on this date. Thereafter, the case was further adjourned to 30/09/14 for adoption of the final written addresses of the parties. However, the matter came up instead on 11th November, 2014. On this date, the claimant’s final written address filed out of time was deemed properly filed and served. Thereafter, the parties adopted their respective final written addresses. The mater was thereafter adjourned to 29th January, 2015 for judgment. However, the judgment could not be delivered on this date because of the industrial action embarked upon by the Judiciary Staff Union of Nigeria [JUSUN] which prevented access to the Court to retrieve the file for the purpose of writing the judgment. The strike action which was commenced on the 5th of January, 2015 was only called off on the 18th January, 2015 and the Court resumed back from the strike on the 26th January, 2015. The matter was thereafter fixed for the 13th of February, 2015, being the next available date that the exigencies of office would permit me to sit in Lagos. Having got to this stage, let me now proceed to the next logical duty imposed on me. This is the summarization of the final written addresses of the parties to the case. I shall start with that of the defendant which is first in time. In the written address settled by: Messrs. JOHNSON ODIONU, ADISA OLUWOLE, AND Ms. JANE ANYIKA, of counsel, three issues were identified as germane to the determination of this suit. They are: 1. Whether the claimant’s contract of employment with the defendant was with statutory flavour? 2. If the above is answered in the negative, whether the defendant can terminate the employment of the claimant? and 3. Whether the claimant is entitled to special and general damages as per her statement of claim dated 28th of August, 2013? In arguing issue No. I, as reproduced above, it was submitted that a contract with statutory flavour is one that is governed by statutes or regulations whereby the employee is vested with legal status higher than that of an ordinary master-servant relationship. On this, the trio cited Nwaubani Golden Breweries plc [1995] 6 NWLR [Pt. 400] 184 at 203 – 205, paras. D – ; and Olaniyan v. Unilag. [1985] 2 NWLR [Pt. 9] 599. Counsel submitted further that arising from paragraphs 4,5,6,7, and 8 of the claimant’s Further Written Statement on Oath, the claimant had contended that the defendant was under obligation to employ internal auditor by virtue of section 357 [1] of the CAMA. Counsel argued that this section or any other section of the CAMA did not mandate the defendant to employ an internal auditor. Counsel argued that the auditor envisaged by section 357 [1] of CAMA is the one appointed at the annual general meeting of the company; and that the resolution appointing such person must be duly filed with the Corporate Affairs Commission [CAC]. Counsel submitted that the claimant has admitted under cross examination that she was employed by the defendant vide letter dated 28th December, 2009. Counsel argued that therefore there is nothing in section 357 [1] that suggests that compulsorily the defendant must employ internal auditor, more so, when the said section did not even mention or use the words “internal auditor”. Counsel argued further that the claimant did not tender any document, aside from her letter of appointment which was signed by the CEO of the defendant, which showed that her employment was tainted with statutory flavour. Counsel submitted that section 357 [1] of the CAMA cannot be read in isolation of section 358 [1] of the CAMA. Counsel argued that section 358 [1] disqualifies the claimant from being appointed as an auditor of the defendant. Counsel submitted that in view of Exhibit DW2 – 2A and DW3 – 3A [the letter of employment dated 7th July, 2009 and 28th of December, 2009], a master-servant relationship subsists between the claimant and the defendant which disqualifies her from being employed as an auditor of the company as envisaged by section 357 [1] of the CAMA. In view of the above, counsel are of the view that the claimant’s employment has no statutory flavour. Counsel proceeded to cite NITEL Plc v. Ocholi [2001] 10 NWLR [Pt. 720] 188 at 241 – 216, paras. H – A on the three categories of employment now extant in Nigeria. Counsel therefore argued that since Exhibits DW2 – DW2A and DW3 – DW3A are the two letters by which the claimant was employed by the defendant, these two letters define the terms of the contractual relationship between them; and that the two letters must be read conjunctively. To this extent, it was contended that the SEC Code is a mere guide book with no force of law at all, and as such, inapplicable to the case at hand. Counsel therefore submitted that the relationship between the parties in this case falls into the second category of employment types: that is employment reduced into writing. Thus, issue No. 1 was brought to an end. Issue No. 2: If the above is answered in the negative, whether the defendant can terminate the employment of the claimant? Counsel contended that if issue No. 1 was answered in the negative, it follows that the defendant could terminate the employment in tune with the second paragraph of the letter of employment [exhibit DW3 – DW3A] which gives either party the right to terminate on the issuance of one month notice in writing or payment of one month salary in lieu thereof. Counsel cited P.T.I. v. Nesimone [1995] 6 NWLR [Pt. 402] 474 at 484, paras. F – G. Counsel argued that flowing from the foregoing, the defendant has done all that is incumbent on it on the contract terms by paying the claimant one month salary in lieu of notice and that this has been clearly stated in paragraph 22 of its Statement of Defence; and that this was clearly reflected in the termination letter dated 27th June, 2012. Counsel argued that this has been admitted in paragraph 25 of the claimant’s Reply dated 5th November, 2013. Counsel cited Isitor v. Fakorede [2008] 1 NWLR [Pt. 10692] 606 to the effect that what is admitted needs no further proof. Counsel argued that an employer reserves the right to terminate without giving reason as was done in the instant case. Counsel cited Nwaubani v. Golden Breweries Plc [supra]. Counsel argued that the act of sacking the claimant should be seen as act of magnanimity on the part of the defendant as it was evident that the claimant received several queries and warnings on account of her unruly behaviour as well as her flagrant disobedience to constituted authority in the defendant company. Counsel submitted further that the claimant has since remained unremorseful, boastful and pompous. To support this view, counsel referred the Court to paragraph 7 of the claimant’s Statement of Facts and paragraphs 2, 3, 4,5,16 and 24 of the claimant’s Reply dated 4th November, 2012. Counsel referred to Obo v. Comm. Of Educ. Bendel State [2001] 2 NWLR [Pt. 698] 625 at 636, paras. A – D to buttress this point. Thus, counsel ended arguments on issue no. 2. Issue No. 3: Whether the claimant is entitled to special and general damages as per her statement of claim dated 28th of August, 2013? Counsel argued that while an employee whose employment is wrongfully terminated is entitled to damages, the employment of the claimant in the instant case was not wrongly terminated as has been brilliantly shown; and that as such, the claimant is not entitled to damages. Counsel also argued that the facts that would ground award of damages have not been adduced by the claimant in the instant case. Counsel submitted that in cases of wrongful termination, the claimants are ordinarily supposed to prove two things, viz: placing before the Court the terms and conditions of employment, and show in what manner these have been breached. Counsel argued that the claimant admitted she was employed via exhibit DW2 – DW2A and admitted also that she was paid salary in lieu of notice, a procedure contained in exhibit DW3 - DW3A. By these, it was argued that claimant has not been able to show any breach of the terms of her contract with the defendant. It was thereafter argued in respect of special damages that the law does not contemplate special damages in termination of employment relationship. Counsel cited Nwaubani v. Golden Guinea Breweries [supra]; NICON Hotels Ltd. V. N.D.C. Ltd [2007] 13 NWLR [Pt. 1035] 237 at 269, paras. D – E. Counsel submitted that the poser is: what special damages or expenses has the claimant incurred over termination of her employment? Counsel argued that the answer is none; thus explaining the failure of the claimant to plead material facts of such loss or expenses, which are conditions precedent for the award of special damages. Counsel submitted that since the lawful measure of damages payable to the claimant in a situation like this is the period of notice, claimant’s claim for special damages is therefore perverse. The Court is therefore urged to hold that special damages are unknown to contract of employment. Counsel finally urged the Court to dismiss the claimant’s case as lacking in merit. It is now the turn of the final written address of the claimant. In arguing the case, the claimant’s counsel formulated four issues which are as set out below: 1. Whether the Claimant’s contract of employment with the defendant is one with statutory flavour. [sic] 2. Whether the unilateral termination of the Claimant’s contract of employment by the Defendant’s Managing Director is wrongful and unlawful. [sic] 3. Whether the Claimant was given fair hearing by the Defendant prior to the termination of the Claimant’s contract of employment. [sic] 4. Whether the Claimant is entitled to damages against the Defendant’s actions and or inactions. [sic] In arguing issue No. 1, counsel submitted that by virtue of exhibits DW3 – DW3A, the defendant employed the claimant as an Internal Auditor but the claimant was subsequently appointed by the defendant’s Board of Directors as the Head of Internal Control via exhibit CW2 – CW2A. Counsel argued that this latter contract superseded the earlier contract of employment contained in exhibit DW3 – DW3A. Counsel argued that the Court cannot take cognizance of exhibit DW3 – DW3A because it was neither pleaded in the Statement of Fact nor in the Witness Statement on Oath; as any evidence at variance with pleadings, goes to no issue. On this count, counsel referred the Court to Oladipo v. Moba LGA [2010] 5 NWLR [Pt. 1186] 117. Counsel argued that his oversight in objecting to the exhibit does not matter a bit as the piece of evidence is totally inadmissible in law. Counsel quoted excerpts from Oladipo V. Moba LGA [supra], though without giving the page and paragraph, to buttress his point. Counsel argued that from the foregoing submissions, it becomes apparent that the claimant’s contract is laced with statutory flavours as evidenced by exhibit CW2 – CW2A via section 357 [1] of the CAMA; and thus goes beyond the ordinary master and servant relationship. Counsel submitted that thus, in the matter of discipline, the procedure laid down by the applicable statute must be followed strictly. In this regard, counsel relied on Bamgboye v. University of Ilorin [1999] 10 NWLR [Pt. 622] 290 and Oloruntoba-Oju & Ors. v. Abdul-Raheem & Ors. [2009] 13 NWLR [Pt. 1157] 83. Counsel finally submitted on issue No. 1 that in as much as the defendant’s Board of Director confirmed the appointment of the claimant and not solely by the defendant’s Managing Director, the Court should come to the conclusion that the contract was one laced with statutory flavour. Issue No. 2: Whether the unilateral termination of the Claimant’s contract of employment by the Defendant’s Managing Director is wrongful and unlawful. [sic] Counsel began argument on issue No. 2 by submitting that even though the defendant can terminate the claimant’s appointment, it must be done in strict compliance with the statutory provisions thereto. On this, counsel cited Longe v. First Bank Plc [2010] 6 NWLR [Pt. 1189] 1. Counsel submitted that in the instant case, the defendant heavily relied on the claimant’s unruly conducts, as clearly demonstrated in its Statement on Oath and under cross examination, as the ground for jettisoning the correct procedure laid down in exhibit CW2 – CW2A to justify the whimsical termination of the claimant’s appointment by the defendant’s Managing Director, without lawful authority. Counsel relied on UBN Plc v. Soares [2012] 11 NWLR [Pt. 1312] 550 to anchor this argument. Counsel submitted that the defendant’s Managing Director acted ultra vires exhibit CW2 – CW2A when he unilaterally terminated the appointment of the claimant. Counsel reproduced portions of exhibit CW2 – CW2A to show that it was only during the probationary period that the appointment of the claimant could have been validly terminated by the Managing Director; and that since the appointment was terminated after the probational period, the Managing Director lacked the vires to so do immediately after the confirmation of the claimant’s appointment. Counsel submitted further on this score that the claimant’s appointment immediately after confirmation, became subject to the provisions of section 362 [1] of CAMA. Counsel cited Olufeagba v. Abdul-Raheem [2009] 18 NWLR [Pt. 1173] 384. Counsel finally urged the Court to find in his favour on Issue No. 2. Issue No. 3: Whether the Claimant was given fair hearing by the Defendant prior to the termination of the Claimant’s contract of employment. [sic] Counsel argued that the defendant based the termination on unruly behaviour of the claimant but failed to avail the claimant an opportunity to defend herself by failure to issue her a query to that effect and as such violated the requirements of fair hearing. Counsel submitted that the above contention was supported by the defendant’s sole witness when he said “we do not have evidence of query issued to the Claimant here”. Counsel therefore submitted that the termination of appointment of the claimant becomes baseless since she was never afforded an opportunity to defend herself against the allegations levelled against her. Counsel argued that the defendant’s conduct in this instance contravenes the provisions of section 36 of the 1999 Constitution. Counsel cited PHCN v. Alabi [2010] 5 NWLR [Pt. 1186] 65 and Afribank [Nig.] Plc v. Osisanya [2000] 1 NWLR [Pt. 642] 598 to buttress his submissions. Counsel submitted further that it becomes evident that the reason given for the termination is untenable. Counsel also argued that in an employment laced with statutory flavour, the reason for termination becomes germane to both parties; and that this reason must be ascertainable and must be in accordance with the letter of appointment and the regulations governing the appointment. Counsel cited Olufeagba v. Abdul-Raheem [supra]. Counsel thereafter urged the Court to find in favour of the claimant with regard to issue No. 3. Issue No. 4: Whether the Claimant is entitled to damages against the Defendant’s actions and or inactions. [sic] Counsel submitted that since the termination of the claimant’s appointment was unlawful it follows that she must be entitled to damages. Counsel quoted paragraph 14 of the claimant’s Statement of Facts to the effect that the claimant suffered some injuries as a result of the termination and argued that, as a general rule, any fact alleged by a witness during evidence-in-chief which is not challenged under cross-examination is taken to be conceded. And that since the claimant led evidence on the fact of the injury suffered, which evidence is unchallenged during cross examination, it is deemed admitted. On this line, counsel referred to R. v. Wood Green Court ex parte Taylor [1995] CLR 879 as cited in Fola Arthur-Worrey and Yemi Osibanjo “Cross Examination: Mastering the Trial Lawyer’s Most Potent Weapon”, LexisNexis Butterworths, 2006, Durban, at p. 3. Counsel urged the Court that in assessing damages awardable herein, it must take cognizance of the status of the claimant as a professional; and submitted that no amount of damages should be too high to be paid to assuage the integrity and personality of the claimant, as a chartered accountant, whose appointment was terminated on grounds of unproven allegations. Counsel submitted that it has become trite that where a claimant complains of civil wrong against a defendant, and which civil wrong has been shown to be injurious to such claimant, the claimant is entitled to damages. Counsel cited Okuneye v. Lagos City Council [1973] 2 CCHCJ 38 at 43. Counsel finally urged the Court to resolve this issue in favour of the claimant and against the defendant. The defendant filed a reply on points of law. To this I turn; but in summarizing this, I shall only contend myself with reply on points of law and not re-argument. In reply to the argument of counsel to the claimant that exhibit DW3 – DW3A was not pleaded and therefore becomes inadmissible in law, counsel argued that the position of law is that documentary evidence [exhibit DW3 – DW3A] need not be specifically pleaded as it formed part of the documents necessary and connected to the matter under consideration and so could be said to have been sufficiently pleaded in paragraph 5 of the Statement of Defence wherein it was averred that the claimant’s duties were governed by her letter of appointment strictu sensu and paragraph 21 wherein it was pleaded that the defendant would rely on all necessary documents during the trial. Counsel cited Okonkwo v. CCB [Nig.] Plc [2003] 8 NWLR [Pt. 822] 347 at 412, paras. G – H and Odunsi v. Bamgbala [1995] 1 NWLR [Pt. 374] 641 at 667 to the effect that documentary evidence need not be specifically pleaded so long as facts relevant to its admissibility are pleaded. Counsel argued further that this document, even though not listed inadvertently as one of the documents to be relied upon, was nevertheless frontloaded by being attached to the Statement of Defence served on the claimant, and as such, the claimant cannot claim to have been taken by surprise. On this score, counsel urged the Court to discountenance the objection of the claimant’s counsel to the admissibility of Exhibit DW3 – DW3A. Counsel also replied to the issue of non-affordance of fair hearing to the claimant raised by her counsel and argued that the reference made by the claimant’s counsel to the Statement of the defendant’s witness under cross examination cannot be used to alter the contents of documentary evidence except on grounds of fraud by virtue of section 28 [1] of the Evidence Act; Madu v. Madu [2008] 6 NWLR [Pt. 1083] 296 at 324 and BON Ltd v. Akintoye [1999] 12 NWLR [Pt. 631] 392 at 404. Counsel argued that it is only in cases of dismissal, which he argued is different from termination, under which the defendant is obliged to give reasons in writing and invite the person to be dismissed to defend his/her self. On this, counsel cited Saliman v. Kwarapoly [2006] 4 NWLR [Pt. 974] 447 at 496 and Okpeke v. Nigeria security Printing and Minting Company Limited [1999] 12 NWLR [Pt. 629] 160 at 167, paras. D – E. Counsel also argued that Bamgboye v. University of Ilorin [supra], Oloruntoba-Oju v. Abdul-Raheem [supra], and Olufeagbe v. Abdul-Raheem cited by the claimant’s counsel are inapplicable to the facts of this case as they all dealt with people employed under specific statutes, which is not the case here. Counsel submitted further that Longe v. First Bank [supra] cited by counsel to the claimant only decided that before a company’s director could be removed, he must be afforded fair hearing, which is not the case here. Counsel therefore urged the Court to discountenance the objection of the counsel to the claimant on the admissibility of exhibit DW3 – DW3A. Thus, the defendant’s counsel ended his reply on points of law. As could be seen, I have painstakingly summarized the arguments of counsel to the parties in their respective final written addresses. I have also most carefully digested all the arguments canvassed alongside all the documents and processes filed in this matter. The stage is logically set to resolve the dispute. However, before doing this, I would like to take an issue which I consider preliminary, first. This is the issue of objection to the admissibility of exhibit DW3 – DW3A. Counsel to the claimant has argued that the document in question is totally inadmissible in evidence because it was not pleaded while the counsel to the defendant countered this by saying sufficient facts had been pleaded to lay the foundation for its admissibility. Counsel to the defendant also argued in favour of this document by saying the inadvertence in listing it as one of the documents to be relied upon should not truncate its admissibility because the document was actually frontloaded with the Statement of Defence; and as such, the claimant was not taken by surprise. First of all, let me start by saying I have checked the file and found that the document is actually amongst the documents attached to the Statement of Defence which, there is no doubt, that it was served on the claimant. But this does not seem immediately to obviate the more malignant argument that the document was not pleaded and as such, is totally inadmissible in law. This leads me inescapably to an examination of what amounts to sufficient pleading to render a piece of documentary evidence admissible in law. I found the following statement of law from the Court of Appeal in Salami v. Union Bank [2010] LPELR – 8975 [CA] p. 37, paras. D – G in relation to how documentary evidence should be pleaded: Also, the settled position of the law as it relates to tendering of documents or documentary evidence is that it is sufficient if statements of facts relating to the document are contained in the pleading and not necessarily that the document or piece of documentary evidence must be specifically pleaded in a party’s pleading. … Pleading sufficient facts relating to the document goes to show its relevancy to the case of the party in question and once there is no legal bar to its admissibility, then the document is admissible. I think this authority sufficiently espouses the correct position of law on this issue; such that it needs citing no further authority on it. Let me now scout the pleadings of the defendant to see if sufficient facts are therein contained justifying the admissibility of the document in issue. One interesting thing is that going throughout the pleadings of the claimant, which the defendant has to reply to in its Statement of Defence, I cannot find anywhere where the claimant referred to the document in issue as the basis of her instant employment with the defendant. The claimant relied on exhibit CW2 – CW2A [Offer of Employment] letter dated December 28, 2009. Throughout, no iota of averment is made relating to exhibit DW3 – DW3A by any stretch of imagination. I have also carefully checked the Statement of Defence of the defendant; I cannot also find anything remotely related to exhibit DW3 – DW3A. The defendant said paragraphs 3, 4, 5 and 21 of the Statement of Defence justify the admissibility of exhibit DW3 – DW3A. It is pertinent, for the sake of clarity, to reproduce the contents of these paragraphs. Paragraph 3 says: The Claimant was offered a provisional employment by the Defendant vide appointment letter dated 28th December, 2009. The letter dated 28th December, 2009 is hereby pleaded and shall be relied upon by the Defendants at the trial of this case. The provisional employment of the claimant was letter [sic] confirmed by the Defendant through a letter dated 10th August, 2010. The letter dated 10th August, 2010 is hereby pleaded and shall be relied upon by the Defendant at the trial of this case. Paragraph 4 says: The Defendant denies the averments in paragraphs 5 of the Statement of Fact and avers that the Claimant had no statutory responsibility. The Claimant’s duties were governed strictu sensu by her letter of employment given to her by the Defendant. The letter of appointment dated 28th December, 2010 is hereby pleaded and shall be relied upon by the Defendant at the trial of this suit. Paragraph 5 says: Further to the above, the Defendant avers that the Defendant is under no statutory obligation to employ an internal auditor. The claimant was only employed because of the wish of the company to strengthen sound corporate governance practices in the Company. The SEC Code of Corporate Governance which contains stipulations on internal audit is not mandatory; similarly, CAMA has no mandatory provisions regarding the office of an internal auditor. And paragraph 21 says: The Defendant will rely on all the documents necessary and connected to this case during the trial. The Claimant is hereby put on Notice to produce the original of all the documents in relation to the case in her possession. As could be seen from the above, no paragraph of the defendant’s pleadings relates to this document. But what is to be made of paragraph 21 which is a sort of omnibus provision that obliquely seems to allow the tendering of any document, provided it relates to the case, whether or not it was pleaded. I think guidance could be found in the following Supreme Court dictum in Owoseni v. Faloye [2005] LPELR – 2856 [SC], p. 44, paras. C – E: A defendant is not entitled to rely upon a defence, which is based on facts not stated in the statement of claim unless he alleges such facts specifically in his pleadings by way of special defence. Since the claimant did not base her case on exhibit DW3 – DW3A and as such did not aver facts related to exhibit DW3 – DW3A, it automatically follows that the defendant’s defence based on exhibit DW3 – DW3A is a special defence and the defendant must specifically allege facts relating to this document for the document to be admissible. In my humble, but firm, opinion, the above-quoted dictum of the Supreme Court in Owoseni V. Faloye [supra] is an apt statement of the position of law, for the whole essence of pleadings, is to narrow issues down for trial between the parties to prevent a sort of fencing game. This is why the Court of Appeal opined in Atundaolu v. The Registered Trustees of Ona Iwa Mimo Cherubim and Seraphim of Nigeria [2011] LPELR – 3822 [CA] pp. 15 – 16, paras. D – B that: It is instructive at this stage to turn our attention to order 25 Rule 6 of the High Court [Civil Procedure] Rules of Oyo State 1988 and it provides as follows, 6 [1] – “A party shall plead specifically any matter for example performance, release, any relevant statute of limitation, fraud or any fact showing illegality which if not specifically pleaded might take the other side or the opposite party by surprise. 6 [2] – Any condition precedent, the performance or occurrence of which is intended to be contested shall be distinctly specified in his pleadings by the plaintiff or the Defendant as the case may be and subject thereto an averment of performance or occurrence of all conditions precedent for the case of the Plaintiff or the Defendant shall be implied in his pleadings. … Undoubtedly, it is an elementary principle of law that all material facts should be pleaded or they go to no issue. [Underlining mine for emphasis] It is clear that the anchor sheet of the defence of the defendant is placed on exhibit DW3 – DW3A. As such, since the claimant did not make any case out of the said exhibit, and it is the defendant that is making a case out of it, common sense dictates that it is specifically pleaded or sufficient facts related to it are averred to alert the claimant to the defence being raised based on the exhibit. As such, I hold that this piece of evidence offends all rules of, fair hearing, pleadings, and particularly the requirement of frontloading. A document which is just hidden amongst a heap of documents attached to the Statement of Defence and on which no iota of averment in the Statement of Defence allude to could not by any stretch of imagination be said to comply with the essence of frontloading. Materials frontloaded are to be listed in the list of documents and stated in the Witness statement on oath. None happened in the instant matter. Adumbrating on the essence of front-loading, the Court of Appeal, in Adegbuyi & Anor. v. Mustapha & Ors. [2010] LPELR – 3600 [CA] pp. 30 – 31, paras. F – A, says: Front-loading is to ensure that there is no trial by ambush and to expedite the hearing. It is to enable the parties know not only the case they are to meet at trial but also the oral and documentary evidence by which the case is to be proved. It affords the parties an opportunity at the pre-trial session to object to certain documents at the earliest opportunity, to allow certain documents and/or to concede certain facts or issues where appropriate. Before giving my verdict on this exhibit, let me examine another angle to it. Assuming that the document is held not to offend the principle of fair hearing, pleadings and that of front loading, could it be admissible? My answer is still no! Why? The heading of the document “Offer of Contract Employment” and its contents which are not repeated in the exhibit CW2 – CW2A [Offer of Employment] shows that the two documents are totally unrelated. For example, while exhibit DW3 –DW3A states the salary of the claimant to be N1, 200, 000 per annum, exhibit CW2 – CW2A states it to be N5, 205, 489, 68 per annum. Offer of contract employment, simply to my mind, meant that the claimant as at the date in time was not been contemplated for permanent employment. This is why when she was being contemplated for permanent employment she was issued another letter of employment properly designated “Offer of Employment” and it is on the second letter that the appointment of the claimant was confirmed, otherwise the claimant would have two different letters of employment; a situation which is both legally and factually impossible. No reference was made thereto to the erstwhile letter of contract employment in the confirmation letter. At the ascendancy of the letter of offer of employment [exhibit CW2 – CW2A], the erstwhile letter of contract employment became spent and lapsed. To show that this is the unblemished implication of exhibit CW2 – CW2A, it provides in its paragraph 4 that: The appointment will be probational for twelve months. During the probationary period, the appointment could be terminated be either side giving one month salary in lieu of notice. After confirmation of your employment which is subject to satisfactory performance you will be entitled to join staff pension scheme. Paragraph 13 of the same letter which is on the second page states further that: You will be expected to comply with the rules and regulations of the Company which are contained in the Condition of Service Manual. Paragraph 14 finally states: Please sign the copy of this letter enclosed herewith and return same to us as an indication of your acceptance of the terms and conditions of employment as stated above and stating the date of resumption. It becomes very obvious that exhibit CW2 – CW2A is the origin of the employment in issue. Therefore, whichever way one looks at exhibit DW3 - DW3A, it has absolutely no bearing on the contract of employment at hand. This is not withstanding that the employment which began on December 28, 2009 was confirmed on 10th August, 2010, before the twelfth month anniversary specified as probationary period, which was supposed to mature by the 28th December, 2010. If the employer decides to cut short the probational period, that is their own cup of tea. It does not affect the fact that no reference either directly or by implication was made to the erstwhile letter of offer of contract employment [exhibit DW3 – DW3A] as the period from which the probational reckoning was to be calculated. Exhibit CW2 – CW2A started on a fresh ground totally divorced from all previous engagements of the claimant with the defendant. In essence, exhibit CW2 – CW2A is complete on itself without the need of reference to any other document asides the ones it itself referred to. It is abundantly clear that exhibit CW2 – CW2A did not directly or indirectly refer to exhibit DW3 – DW3A. Instead, it shows a clear manifestation of overriding exhibit DW3 – DW3A. And when exhibit DW4 [Confirmation of Appointment] confirmed the appointment of the claimant, it must be logically held that it confirmed the appointment contained in exhibit CW2 – CW2A because, it is only exhibit CW2 – CW2A that anticipated confirmation by making provision for it whereas exhibit DW3 – DW3A did not anticipate confirmation and therefore did not make any provision relating to confirmation of appointment. I therefore unequivocally hold that exhibit DW3 – DW3A is inadmissible for all the reasons given earlier on and particularly because it is totally irrelevant to the instant case. It equally has no probative value even if it is left untouched. Exhibit DW3 – DW3A is therefore expunged from the records of the Court as having been wrongly admitted on the authority of Kanjal v. Ifop [2013] LPELR – 22158 [CA] pp. 81 – 82, paras. F – B. Having cleared the preliminary issue out of the way, let me now go into the merit of the case. In doing this, I adopt the two of the issues formulated by the counsel to the claimant [though slightly rephrased] while the third is formulated by me. I believe these three issues are quite germane to the facts of this case. They are as follows: 1. Whether the claimant’s employment is one with statutory flavour? 2. Whether the claimant has discharged the burden of proof placed on her? 3. In the event of answering issue No. 2 in the affirmative, whether the claimant is entitled to damages? Issue No. 1: Whether the claimant’s employment is one with statutory flavour? Heavy arguments have been dissipated on whether the employment dispute in issue is one tainted with statutory flavours or not. At one side of the podium is the claimant’s counsel who is of the opinion that the employment in issue is governed by sections 357 [1] and 362 [1] of the CAMA and the SEC Code. At the other side is the defendant’s counsel who is of the contrary opinion. He argued that the employment is strictly governed by the terms contained in the letter of appointment, especially exhibit DW3 – DW3A [Offer of Contract Employment]; and that the provisions of the CAMA and SEC Code have nothing to do with the employment at stake. Straight away, let me quickly state that the argument of the defendant’s counsel that exhibit DW3 – DW3A [Offer of Contract Employment], which provides that the employment contract between the two parties could be determined by either of the two parties by issuance of one month notice or payment of one month salary in lieu thereof, and which provision the defendant’s counsel heavily relied on, is of no moment in the instant case. I have held earlier on that the subject matter of the contract of employment contained in exhibit DW3 – DW3A has no relation with the contract of employment contained in exhibit CW2 – CW2A and the letter of confirmation. I have also held that exhibit DW3 – DW3A is inadmissible; and consequently expunged from the records as having been wrongly admitted. I have equally held earlier on that exhibit CW2 – CW2A is the origin of the contract of employment in issue. But that does not mean the said employment cannot yet be governed by statute. Just like in Longe v. First Bank Plc, the employment in issue therein was one primarily between the First Bank and the appellant who was employed by First Bank in the first instance, but when he became a director of the Bank, his position was no longer governed by common law but the provisions of the CAMA. Therefore, what one must look for to determine whether or not an employment is governed by statute, is not very much the terms of the initial letter of appointment but rather the effect of the alleged statute on the employment relationship. This exactly seems to be the argument of the claimant’s counsel. The gravamen of his contention, if I may venture, is that the position of internal auditor is a statutory one and therefore governed by statute. Counsel is also of the view that the fact that the defendant’s Board confirmed the claimant’s appointment into this position, by this, the appointment has been taken out of ordinary master-servant relationship and elevated to the level of employment flavoured with statute. Therefore, I must proceed to examine the arguments of counsel on the effects of the provisions of CAMA and SEC Code cited on the employment in issue. I would first examine the provisions of CAMA in issue. The provisions of CAMA in dispute are sections 362 [1], 357 [1], and 358 [1] & [2]. Let me, for the purpose of clarity, reproduce the provisions of these sections, one after the other. Section 362 [1] provides thus: A company may by ordinary resolution remove an auditor before the expiration of his term of office, notwithstanding anything in any agreement between it and him. Section 357 [1] provides thus: Every company shall at each annual general meeting appoint an auditor or auditors to audit the financial statements of the company, and to hold office from the conclusion of that, until the conclusion of the next annual general meeting. Section 358 [1] provides thus: The provisions of the Institute of Chartered Accountants of Nigeria Act shall have effect in relation to any investigation or audit for the purpose of this Act so however that none of the following persons shall be qualified for appointment as auditor of a company, that is – (a) An officer or servant of the company; (b) A person who is a partner of or in the employment of an officer or servant of the company; or (c) A body corporate, and references in the subsection to an officer or servant shall be construed as not including references to auditor. Section 358 [2] provides thus: In the application of subsection (1) of this section, the disqualification shall extend and apply to persons who in respect of any period of an audit were in the employment of the company or were otherwise connected therewith in any manner. I shall start my examination and interpretation of the above-quoted provisions with the provisions of section 358 [1] of the CAMA. This is because this subsection deals directly with the appointment of an auditor. It is clear that the auditor envisaged here is an auditor appointed for the sole purpose of auditing the “financial statement of the company”. He does no other job. It is also clear that this auditor under subsection 357 [1] of the CAMA only holds office for a year, subject to extension for another year at the discretion of the annual general meeting of the Company: the auditor so appointed is “…to hold office from the conclusion of that’ [that is, the initial audit work when he was freshly appointed], ‘until the conclusion of the next, annual general meeting”. It is also abundantly clear that it is the annual general meeting of the company that appoints this auditor in contemplation of section 357 [1] of the CAMA. Let me now juxtapose the above salient expositions with the contents of exhibit CW2 – CW2A [the Offer of Employment] which I have held is the very origin which ought to be regarded at all times when talking of the contract. Paragraph 2 of exhibit CW2 – CW2A provides; and I quote: “You are hereby offered an employment with our Company as Head Internal Control. You will have responsibility for all the subsidiaries within the Group”. The phrase “Head internal Control” is emphasized by me because of its central place to the issue at hand. As could be seen, the letter of appointment of the claimant used the words “Head Internal Control” and not auditor. The parties to this suit, through their counsel, have on their own invented the phrase “internal auditor” to describe the position of the claimant. This might well arise from the nature of the duties performed by the claimant in her internal control schedule or just the popular name for someone who performs those functions in a company. Be that as it may, it is clear that whether the claimant is called “internal auditor” or “Head Internal Control”, both phrases made it inherently clear that the claimant is within the company and is part and parcel of the company and therefore intrinsic to the company. It is also abundantly inferable from the sentence “After confirmation of your employment which is subject to satisfactory performance you will be entitled to join our staff pension scheme” that the claimant is after the confirmation a permanent staffer of the company, thus confirming the reasoning that the claimant is part and parcel of the company. From exhibit DW4 [Confirmation of Appointment], it is further made clear that it is the Board of the company that approved the confirmation of employment of the claimant when the first paragraph states that: “This is to convey the Board’s approval of the confirmation of your employment with the company effective from August 1st, 2010. By now, it must be clear to even a casual observer that exhibit CW2 – CW2A together with exhibit DW4 have nothing in common with section 357 [1] of the CAMA. In fact they are mutually incompatible and directly opposed in contents and intents. In section 357 [1] of CAMA, the auditor envisaged is to be appointed by the general meeting of the company concerned whereas the claimant was directly employed by the defendant company without any input from the annual general meeting of the defendant company. The auditor envisaged by section 357 [1] of CAMA holds office for a watertight one year and his office ceases or continues yearly at the discretion of the annual general meeting of the company who may decide to terminate while the claimant is a permanent and pensionable staff of the defendant company holding her office not for one year or renewable extension but until she reaches retirement age. The provisions of section 358 [1] clears any doubt on the interpretation placed on the provisions of section 357 [1]. It shows clearly that the person to be appointed auditor as envisaged under section 357 [1] is not to be previously or subsequently, during the pendency of acting as auditor under section 357 [1], employed as a staffer of the company. It means the auditor envisaged is external to the company in issue and as such not in any way subject to the company’s control. That this is so, is made clear by section 359 [1] of CAMA which makes the auditor under section 357 [1] of CAMA responsible to the annual general meeting to whom he had to lay the report prepared by him whereas, the claimant as an internal auditor, has no business with the annual general meeting of the defendant company, and his duties are at most with the Board of the defendant company. I think the relationship between the auditor envisaged under section 357 [1] of CAMA and that of internal auditor or Head Internal Control is that the internal auditor controls the financial activities of the company with a view to seeing that the company does not fall victim of those things that might make it victim of the external auditors’ hammer under section 359 of the CAMA. The internal auditor helps the company to satisfy the test of financial probity long before the scrutiny of the external auditor envisaged under section 359 of the CAMA. It follows therefore that the office of the internal auditor or that of Head Internal Control is not statutory and has nothing to do with CAMA. It is entirely a creation of the defendant company. I now come to section 362 [1] of the CAMA. This section deals with the removal of a company’s auditor which it says it shall be by an ordinary resolution of the company. Now, the question is: is the claimant herein an auditor of the defendant company as envisaged under section 362? To answer this question, I shift my attention to sections 357 [1] and 358 of the CAMA which prescribe who appoints a company’s auditor and how he is appointed. Section 357 [1] says every company shall at each annual general meeting appoint an auditor or auditors to audit the financial statements of the company. To my mind; and from the facts available in this case, the claimant meets none of the requirements specified to be qualified as an auditor of the company envisaged under section 357 of the CAMA. The claimant was appointed directly by the company and the Board of the company confirmed her appointment. In all these, the members of the company at the annual general meeting did not have anything to do in her appointment and confirmation. Section 358 [1] even makes it clear that the defendant cannot even be appointed as an auditor of the company as envisaged under section 357 [1] of the CAMA. Section 358 [1] says a servant of the company cannot be appointed as an auditor envisaged under section 357 [1] of the CAMA. So, it follows that section 362 [1] of the CAMA which deals with the removal of auditor has nothing, and absolutely nothing, to do with the claimant’s employment with the defendant company. At least, one first has to be an auditor as envisaged under section 357 [1] of the CAMA before such person can start to talk that the provisions of the CAMA relating to removal of auditors relate him/her. The claimant is not an auditor as envisaged under section 357 [1] of the CAMA, so, the provisions of section 362 [1] of the CAMA cannot relate to her; and I so hold. I now come to the issue of exhibit CWAA [SEC Code] which the claimant averred in paragraph 7 of her Statement of Facts to place her under obligation far above the ones owed to the defendant company. Counsel to the defendant has said the SEC Code has no force of law and should not be reckoned with in the determination of this case. Counsel to the claimant did not make any argument on this in his written address. Let me say that I have carefully combed through all the provisions of the SEC Code and cannot find any aspect of it that deals with the procedure of the removal of the claimant from office. I think that is the pertinent issue before this Honourable Court. The issue of whether or not it has force of law is therefore a non-starter; and I so hold. In all, I cannot but agree with the learned counsel to the defendant that the employment of the claimant herein is not covered with statutory flavours, and I so hold. To this extent, issue No. 1 is resolved firmly in favour of the defendant and clearly against the claimant. Issue No. 2: Whether the claimant has discharged the Burden of Proof Placed on Her? Having held that the employment of the claimant is not covered by any of the statutes referred to by the claimant, it follows that the terms of the contract of employment between the parties must be deduced first and foremost from the letter of appointment which is the origin of the terms that might subsequently govern the contract. It is the letter of appointment that is a pointer to where to get the terms of the contract if not expressly stated in the letter of appointment itself. Let me now examine the relevant provisions of the letter of appointment, that is, exhibit CW2 – CW2A. Paragraph 12 of the 13-paragraph letter of offer of employment provides thus: “You will be expected to comply with the rules and regulations of the Company which are contained in the Conditions of Service Manual”. Though, the letter [exhibit CW2 – CW2A] contains sundry conditions of service and terms, none of these provides for the procedures for termination of the employment contract from either side. It is customary that in employment whereby the terms are reduced into writing as is this one that the letter of employment does not usually contain all the terms and conditions of the contract; and that further terms and details regarding the conditions of service, especially the procedure for termination, are usually contained in a separate book called the Staff Manual or Conditions of Service Manual or Rules and Regulations. This is what paragraph 12 of exhibit CW2 – CW2A has made reference to. Unfortunately, I have carefully checked through the exhibits and the pleadings of the parties, I strangely could not find any place where this important document was exhibited or even mentioned by the parties. It would seem that the two parties are dodging this all important document. In any case, in law, it is the duty of the plaintiff [claimant] to prove his case. It has since become trite that the plaintiff [claimant] cannot rely on the weakness of the defendant’s case but must rely squarely on the strength of his own case. It follows that it is the claimant who has the duty to know which document would anchor his case; and therefore which document to tender. Where claimant fails in this regards, he swims in his/her own self-induced problem. A situation where counsel would leave an important document and would go about scouting for the ones irrelevant to a case leaves much to be desired. After all, the letter of appointment which the claimant’s counsel so much relied upon conspicuously mentioned this document, such that it logically becomes part of it. The apt ratio of the Court of Appeal on this issue in Integrated Merchants Limited v. Osun State Governemnt & Anor. [2007] LPELR – 8803 [CA] p. 23, paras. A – E, becomes apposite; and I quote: … where series of documents constitute the contract between parties any document incorporated into the main contract paper or agreement should be interpreted or construed as forming an integral part of the main contract… When a contract is reduced to the form of document into which has been incorporated other documents, the documents incorporated cease to be extrinsic to the main document, but fall to be construed as part of it. It does not need any special discernment, for even a novice, not to talk of a counsel, to know that he ought to plead and exhibit the document; even if the counsel has an idea of placing reliance on other documents not mentioned by the letter of employment. Once the letter of employment mentions this document, it logically becomes part of it and must be tendered along with it to make even the letter of employment a complete whole. Without this, the letter of employment is itself inchoate. The reasoning of the Court of Appeal in Udeagu v. Benue Cement Company Plc [2005] LPELR – 6170 [CA] pp. 30 – 31, paras. F – B, clearly elucidates my reasoning above: …is also settled, that it is not the duty of a court, to determine the issues before it on the basis of one document only, when a contract is contained in a series of documents or letters or correspondences. The court is under a duty, to consider the whole of what has passed between and the conduct of the parties. If the document is not in existence but was merely referred to in the letter of appointment, the claimant should have clearly stated this in her pleadings. Once the appointment letter refers to this document, it is logical to presume its existence. And what is more, the terms of the agreement relating to the procedure for termination is not contained in the appointment letter or any other document tendered by the claimant. The only thing contained in the appointment letter relating to termination, is the term relating to termination before confirmation. And the issue here is termination after confirmation. As it is now, the document wherein the terms relating to termination after confirmation, is not before the Court, and by law, a court of law is precluded from speculating on a document not placed before it – see Ode & Ors v. A-G, Benue State & Ors. [2011] LPELR – 4774 [CA] pp. 54 – 55, paras. A – B. The Supreme Court has held in Morohunfola v. Kwara State College of Technology [1990] LPELR – 1912 [SC] p. 16, paras. A – C. that: In an action for wrongful dismissal it is necessary, therefore, to plead the contract of employment, which is the foundation of the action, and not to leave the fact of the existence of the contract and its terms to speculation by the defendant and the trial Judge. Without the contract and its particulars being pleaded by the plaintiff no evidence of the terms of the contract which has been breached would be admissible at the trial; and this will be fatal to the action since it will lack foundation. Although, the above ratio has been made subject to a situation where the terms of the contract are not in issue by a subsequent authority of the Supreme Court – see OKOEBOR V. POLICE COUNCIL [2003] LPELR – 2458 [SC] P. 37, PARAS. A – B and the Court of Appeal case of NIGERIAN INSTITUTE OF INTERNATIONAL AFFAIRS V. AYANFALU [2006] LPELR – 5960 [CA] PP. 28 – 29, PARAS. G – . It is quite obvious that the terms of contract herein are very much in issue, particularly as they relate to the procedure for termination; so Okoebor v. Police Council would not be applicable. The main issue at stake now is the procedure for termination of the employment and consequently whether the termination was right or wrong. Facts relating to this has not been pleaded and neither is the Conditions of Service Manual alluded to in the letter of employment [exhibit CW2 – CW2A] pleaded or tendered before the Court to enable the Court fish out whether the procedure for termination is therein contained; and whether it was followed. I cannot see how the issue of the terms of the employment dealing with the procedure to terminate can be glossed over where there is a written employment contract. It is from this that one can deduce wrongful termination and to a large extent, whether there was fair hearing. To determine fair hearing, one has to first consider the procedure for termination; then examine whether it gives room for fair hearing or not. It is only after this that, if one comes to the conclusion that the procedure specified is inadequate, that one can jettison the procedure; and if one comes to the conclusion that the procedure adequately guarantees fair hearing, but was not followed, one then can safely arrive at the conclusion that the termination was wrongful. The written contract is first and foremost the port of call to see if its terms were breached; and in what particular manner, in terminating an appointment. The Supreme Court has adumbrated on the manner in which a party must prove his case to succeed in Eyo v. Onuoha & Anor. [2011] LPELR – 1873 [SC] p. 29, paras. A – C: The law is well settled that a party must first prove his case with credible evidence before the burden placed on him by the law can shift to his opponent. … The position of the law is that the plaintiff cannot rely on the weakness of the case put up in defence by the defendant. Based on my reasoning so far and the above authorities, I come to the conclusion that the claimant herein, by failing to plead and tender a vital document, has failed to prove her case as required by law. Thus the claimant has failed to discharge the burden of proof placed on her thereby making it unnecessary for the defendant to discharge any burden. In Oyewo v. Komolafe [2010] LPELR – 4820 [CA] p. 40, paras. G – A, the Court of Appeal held that: “It is also trite that where no evidence is led to establish the claims made before a court, such claims will be dismissed for want of evidence”. Consequently, this case is dismissed for want of evidence. I award no cost. ……………………………………….. Hon. Justice B. A. Adejumo, OFR [MCIArb, GFSM, CFIAR, FCIArb, FNILS] President, National Industrial Court of Nigeria