IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDING AT ABUJA
BEFORE HIS LORDSHIP: HON JUSTICE O. O. OYEWUMI
DATED: 22ND MARCH, 2021 SUIT NO: NICN/ABJ/151/2019
BETWEEN
MR HENRY EYO - CLAIMANT
AND
NTA-STAR TV NETWORK LIMITED - DEFENDANT
Representations
Noah Ajare with him Chinwe Ohadimma, P.A Achuara, H.Y Aliu, E.O. Lynus for the Claimant
Ernest Nwoye with him Mercy Omonejo for the Defendeant.
JUDGMENT
1. The grievance of the claimant for approaching this Court against the defendant is that as an employee of the defendant, employed on the 8th of June, 2015 as the Human Resources Director of the defendant. His salary has been increased grossly in the sum of N1,000,000 (One Million Naira. He stated that on the 7th day of August, 2018 he had an altercation with one Mr. Fan Xi which never led into a physical fight. He pleaded that on the same day he lodged a formal complaint to the defendant via a letter titled: RE: A Case of Threat to Life against Henry Eyo by a Chinese Staff – Fan Xi. He continued that he received a letter of suspension on the same day to take effect from the 8th of August, 2018 and for three days without pay. That he also received a letter of dismissal dated 13/8/2018 by the defendant without conducting a thorough investigation. He stated that he wrote a letter of Appeal to the defendant on 15/8/2018 and the dismissal letter was withdrawn on 8/10/2018 extending his suspension to 12/10/2018. That he was invited to appear before a fresh panel on 11/10/2018 and his employment was wrongfully terminated by the defendant. He stated that pursuant to his dismissal he instructed his solicitors to formally demand from the defendant his entitlements and outstanding salaries on the 13th of May, 2018 and the defendant on the 21st March, 2019 responded denying him his claims. It is consequent upon all the above that the Claimant by a General Form of Complaint dated 13th of June, 2019 commenced this suit against the defendant praying the Court for the following reliefs. –
1. A Declaration that the defendant is in breach of the terms of the contract of employment with the claimant.
2. A Declaration that the dismissal and termination of the claimant by the defendant is unjust and unlawful.
3. A Declaration that the claimant is entitled to all his outstanding salaries and every other entitlement from his employment with the defendant
4. An Order that the defendant should pay the claimant the sum of N10,000,000 (Ten Million Naira only) as general damages suffered by the claimant from the act of the defendant in breaching the contract of employment between the claimant and the defendant.
5. An Order that the defendant should pay the claimant the following entitlement;
(a) Cost of this action
(b) Salary from time of dismissal to retirement age
(c) Unpaid salaries from the date of suspension August 8th, 2018 till date.
(d) The sum of the monthly contributory pension fund from the time of employment to the time of dismissal.
(e) A post judgment interest as may be deemed appropriate by the Court in this case.
2. The defendant in its response stated that the claimant had physical fight with one Fan Xi and he never made any complaint against Mr Fan XI. It stated further that the claimant was first suspended after disciplinary hearing where he made representations in line with the employee handbook and also that he was given opportunity of re-hearing after he pleaded that he has additional documents, facts and evidence. It went on to state that the claimant’s dismissal was fair in the circumstance and that his employment was never terminated but suspended without pay in line with the handbook and that the claimant is still its staff and he has not been dismissed. Defendant averred that upon claimant’s appeal to the Board his dismissal was withdrawn, his suspension without pay was extended to October, 2018. That after rehearing the disciplinary committee recommended him for termination but the Board is yet to ratify same thus he is still its staff. That by a letter dated 16th November, 2018 he was informed that his suspension without pay will be till such time when the Board sits and takes final decision. That the claimant’s case is premature.
3. The defendant by way of counterclaim averred that claimant’s loan is still outstanding and unliquidated. That it was charged the sum of N2,500,000.00 as cost to defend this suit in which it has paid the sum of N1,250,000.
WHEREFORE it claims as follows;
a) A Declaration that the termination of the employment of the claimant was lawful and in accordance with the defendant’s handbook.
b) An Order of this Honourable Court Compelling the Claimant to pay the defendant the N1,686,445 (One Million Six Hundred and Eight Six Thousand, Four Hundred and Forty-Five Naira) only being debt owed to the defendant by the claimant.
c) An order of this Honourable Court Compelling the claimant to pay the defendant the N2,500,000.00 (Two Million, Five Hundred Thousand Naira) as reasonable attorney’s fee paid for defending this suit.
d) Cost of N1,000,000.00 (One Million Naira) only.
4. During trial, claimant testified for himself as CWI. He adopted his written statement on oath of 4/02/2020 as his evidence in this case. He tendered some document which were admitted in evidence and marked as Exhibits HE – HE7 and was cross examined by the defence. Also One Angelica Chidinma Ndubuisi, Human Resources Executive at Premium Times Services Ltd testified for the claimant as CW2 and tendered no document. The defence equally cross examined CW2 on the 5/2/2020. One Paschaline Aneke a staff of the defendant Company testifies as DW1 she adopted her witness statement on oath of 10/3/2020 as her evidence in this case. She also tendered some documents which were admitted and marked as Exhibits P-P3 and was also cross examined by the claimant’s counsel.
5. Pursuant to the rules of this Court, parties filed its final written submission with the defendant filings its written address on the 25/11/2020 wherein counsel on behalf of the defendant formulated two (2) issues for the Court’s determination thus:
1. Whether the claimant’s employment has been determined by the defendant to entitle him to any reliefs being sought;
2. Whether this suit is an abuse of Court process?
6. Learned Counsel on issue one distinguishing the term Dismissal and Termination and citing several relevant authorities to buttress same submitted that claimant does not understand both terms as he and counsel on his behalf uses same interchangeably throughout his pleadings and even during cross-examination. He stated that either the claimant does not know why he is in Court or that he chose to be changing his case so as to deceive the Court. He cited the cases of Adeosun v Gov of Ekiti State & ors [2012] 4 NWLR (Pt 1291) 581 at 606; Osadim v Taiwo [2010 6NWLR (pt. 1189) 155, @ 180 paras C-E. Learned counsel submitted that the evidence of claimant is inconsistent and different from the facts pleaded and therefore should be rejected. He stated that the duty lies on the claimant to prove that his employment was first determined and secondly wrongfully done.
7. He posited that the claimant only pleaded the fact of his dismissal vide a letter dated 13/8/2018, he continued that the claimant tendered the letter of dismissal during trial and that the same claimant who anchored his dismissal letter dated 13/8/2018 also stated and testified that the same letter of dismissal was withdrawn vide a letter dated 8/10/2018 after his letter of plea which directed that he appear before a new panel on 10/10/2018. He submitted that from the evidence before the Court, the claimant has failed to prove that his employment with the defendant was either terminated or dismissal. Counsel therefore urged the Court to dismiss this suit and enter judgment against the claimant on this ground.
8. On issue two, learned defence counsel submitted that this suit is an abuse of Court process brought out of malice, calculated to harass, oppress, irritate, vex, embarrass and scandalize the defendant. He cited the case of PML (Nig) Ltd v FRN [2017] LPELR 43480 SC. He also submitted that the effect thereof is dismissal and it urged the Court to so hold.
9. Similarly, counsel on behalf of the claimant filed a written address dated 10/12/2020 wherein he formulated five (5) issues for the Court’s determination and also adopted the two issues formulated by the defendant as issues 1 and 2 as follows;
1. Whether the claimant’s employment has been determined by the defendant to entitle him to any reliefs being sought;
2. Whether this suit is an abuse of Court process?
3. Whether the defendant herein have complied with the due process of law in terminating or dismissing the claimant from defendant employment.
4. Whether the claimant have proved his case on the preponderance of probable evidence as to render the defendant liable in damages in this suit.
5. Whether the defendant is entitled to any of the reliefs as contained in the counter claim.
6. Whether from the state of the pleadings the defendants are not deemed to have admitted all the relevant facts.
7. Whether the defendant presented the full evidence at their disposal.
10. Taking issue one of the defendant and claimant’s issue three together, counsel submitted that whether it is called termination, indefinite suspension or dismissal, they all have same implication with particular reference to the facts of this case that the claimant’s employment has been determined and as such he is entitled to all the reliefs as claimed in this suit. He stated that assuming that claimant’s employment hasn’t been determined, he will still be entitled to the reliefs in this suit, because both parties have admitted that the claimant was suspended in August 2018 and till date he hasn’t been paid pension as it has been alleged by the defendant in the case has lasted for more than 2years and five months. Counsel submitted that the defendant by its letter dated 21st of May, 2019 was very sure of the claimant’s current status when it clearly stated that he was dismissed. He posited that suspension was supposed to be a temporary action which ought not to have lasted forever, or without defined time frame. Counsel cited the case of Maiphen v Unijos Consultancy Ltd [2013] LPELR – 21904 (CA).
11. Counsel argued that the defendant failed to follow due process in law or applying their internal process. He noted that the staff Handbook clearly states the only condition is on an allegation of “fraud” for the purpose of allowing the management to carryout investigations. He stated that from the evidence before the Court clearly reveals that the allegation against the claimant has nothing to do with fraud which clearly shows that the alleged indefinite suspension without payment is not provided for by the Handbook and grossly unreasonable by all standards both local and internationally. He submitted that, in determining whether the defendant complied with the due process of law in terminating the claimant employment, it is for the Court ascertain whether claimant’s employment is backed with statutory flavor, which would bound the defendant to follow due process as both parties have agreed in the evidence before the Court that the claimant was a Director of the defendant Company. He cited the case of New Nigeria Newspapers Limited v Mr. Felix Atoyebi (CA/K/282/2006); [2013] NGSC 2 (19 April 2013). It is counsel’s argument that from the evidence put forward claimant has demonstrated that his employment is statutorily flavoured and thus in the event of termination of employment, strict adherence must be followed by the statute creating the employment, as statutory provisions cannot be waived. He cited the case of CBN v Mrs Agnes Igwillo [2007] 5 SCNJ 52 (2007) 4-5 SC 154. Counsel stated that no fair hearing was accorded the claimant throughout the disciplinary panel as members of the said panel were biased and unduly manipulated. He then submitted that the removal/dismissal of the claimant is in contravention of the Public Service Rules and the principle of fair hearing enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
12. On the defendant’s issue two, Counsel submitted that the claimant’s suit is not an abuse of Court process as due process of law was followed in initiating this suit. He cited the case of R Benkay Nig Ltd v. Cadbury Nig Ltd [2012] 3 SC (PT. 111) 169 and submitted that the claimant’s case arose from unlawful termination of his employment by the defendant upon which claimant’s seeks redress. He urged the Court to discountenance the argument of the defendant.
13. As to whether the claimant’s employment has been determined by the defendant, Counsel submitted that the claimant’s employment has been determined, terminated and or dismissed by the defendant. He stated that the defendant relied heavily in his final address on Semantics and Technically in trying to dissuade the Court from the fact that the claimant’s employment has been terminated he submitted that the defendant failed to adhere to clause 2 of claimant letter of employment in that the claimant was placed on an indefinite suspension exceeding one month contrary to clause 2 of the letter of employment. He urged the Court to so hold.
14. On claimant’s issue four, learned counsel submitted that the claimant has proven his case to entitle him to have judgment delivered in his favour as the defendant did not challenge his evidence. He relied on the case of N.A.O.C v Janyim (Nig) Ltd [2013] ALL FWLR (Pt 785) pg 366 @ ratio 11. Counsel posited that all the documents tendered by the claimant in this suit are all relevant in proving his case. On the failure to produce the CCTV footage and the details of the alleged incident despite the Notice to produce issued by the claimant, Counsel urged the Court to invoke the principle of withholding evidence. He urged the Court to so hold. On the claim for General damages of N10,000,000.00, Counsel submitted that in consequence of the claimant’s unlawful termination, he is entitled to general damages.
15. On claimant’s issue six, learned counsel argued this issues from 2 perspectives:
i) Admissions due to insufficient traverse: - Counsel stated that this principle is based on the rules of pleadings and requires that a traverse “to constitute an effective and sufficient denial, of an averment in a statement of claim or petition, the denial must be apt, precise, succinct, full and complete and not evasive, rigmarole. He cited the case of Mr. Micheal Bassey Asuquo v University of Calabar teaching Hospital (unreported) delivered on the 3rd of March, 2017. (ii) Has the defendant traversed the pleadings of the claimant, Counsel responded that the claimant in paragraph 1 to 27 of the statement of claim condescended on particulars in respect of the details of the claimant’s records, employment, the incidence, exercise of control of the defendant’s denial was simply contained in paragraph 1 to 35 of the statement of defence, using an hearsay witness as she was not present when the incident occurred on 7/8/2018. Counsel urged the Court to hold that the dismissal was valid.
16. On issue seven, learned counsel maintained that by virtue of the admissions made by the defendant as argued, all the material facts needed to ground the claimant’s case has been established and no material fact went to trial. He stated that the effect of failure to call named officers of the defendants and to produce documents named in the Notice to produce filed and served by the claimant which the defendant amounts to withholding evidence contrary to Section 167 (d) of the Evidence Act, 2011. He urged the Court to so hold.
17. It is the argument of learned counsel on issue five that the defendant filed a counter claim before the Court that reliefs A has been abandoned, as DWI gave evidence that there was no termination of employment, but rather the claimant is still a staff of the Company till date noting that he is only on indefinite suspension. He urged the Court to discountenance the defendant’s counter claims and grant all the reliefs as contain in claimant claim.
18. In response to the claimant’s final written address, learned counsel on behalf of the defendant filed a reply on points of law dated 22/12/2020 where he responded on the termination, indefinite suspension or dismissal, having the same implication with respect to the fact of this case he stated that the claimant must state specifically what wrong was done to him for seeking the Court’s redress to enable the defendant react then the Court can decide. He cited the case of Ajide v Kelani [1995] 3 NWLR (Pt 12), pg 248 @ 301. Counsel’s in response to claimant’s employment enjoying statutory flavor, he submitted that the claimant employment is that of master-servant which is held at the master’s pleasure and that it does not enjoy any statutory flavor as the defendant is not an institution of Government or Government parastatal but a private limited liability Company registered under the laws with distinct corporate personality.
19. It is further submitted in respect of the alleged Hearsay Evidence of DWI that any staff of a Company can testify on behalf of the Company whether or not the person was not part of the transaction is immaterial. He relied on the case of Ayodeji v FRN [2018] LPELR – 45839 (CA) 29-34 Para E-F.
20. In response to issue 4, counsel stated that the claimant has not proved his case as his evidence of termination and dismissal is not cogent and verifiable. On the issue of withholding evidence, Counsel submitted that the defendant did not withhold any evidence as the CCTV footage and recorded testimonies of witnesses to the incidence are immaterial to the determination of this suit. He further submitted generally that the claimant’s case is bound to fail as it lacks merit, hasn’t been able to succeed on the strength of this case. He cited the case of Mohammed v Wammako & Ors [2017] LPELR – 42 667 (SC) pg 20 – 21. He urged the Court to dismiss the case.
21. I have examined all the processes filed in this suit, the submissions of both counsel. It is apparent from the facts and circumstances of this case that the claimant’s is seeking the Court’s intervention against a breach of his terms of employment and payment of his salaries and other entitlements. Whilst the defendant is counter claiming for loan amount unpaid by the claimant.
22. Before going into the crux of this suit, learned counsel for the defendant by paragraphs 5.1 to 5.8 of his written submission stated that this suit is an abuse of Court process as the claimant instituted this suit out of malice, calculated to harass, oppress, irritate, vex, embarrass and scandalize the defendant. In his response, learned counsel for the claimant at paragraph 6.17 of his written address reacted by stating that the claimant’s suit is not an abuse of Court process as it arose from the unlawful termination of his employment which he has come before the Court to seek redress. It is undisputable that the question raised by the defendant is one which goes to the foundation of the action as it raises the question of the jurisdiction of this Court to entertain this matter. See Davies & Ors v. Odofin & Ors [2017] LPELR-41871CA. It is trite that jurisdiction is the bedrock of all legal actions. A proceeding conducted without jurisdiction no matter how beautifully done is nothing but an outright nullity. Jurisdiction is a sine qua non in all legal proceedings so much that when raised, the Court has the resolute duty to have it settled first one way or the other before the Court proceeds to the substance of the case. See the cases of Ido Local Government v. Hon Emiola Musibau & Ors [2019] LPELR- 46941CA; AG Adamawa State v AG. Federation [2014] 14 NWLR (Pt. 1428) 570; Okariaka v. Samuel [2013] 7 NWLR (Pt. 1544).
23. The issue of abuse of Court process is a jurisdictional issue and requires the determination of the Court. The concept of abuse of Court process is when the process of the Court has not been used bona fide. It is characterized by an action initiated without a just or reasonable cause, improper use of judicial process. See the cases of Mungwa v. Boko & Ors [2019] LPELR- 48194 CA; Adesoji v FUTA [2017] 9NWLR (Pt. 1570) 208 @ 221; A.G Fed v A.G Abia State [2001] 11 NWLR (Pt.725) 689. The basis of the rule on abuse of Court process is the real possibility of two conflicting decisions in respect of one on the same subject matter. See the case of Bukoye v Adeyemo [2017] 1 NWLR (Pt. 1546) 173 @ 191. The Black's Law Dictionary, 9th Edition at page 10 defined the word "abuse" as:" A departure from legal or reasonable use; misuse.” It is a basic principle of law that abuse of process of Court contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issues. To institute an action during the pendency of another suit claiming the same relief is an abuse of Court process, and the only course open to the Court is to put an end to the suit. It does not matter whether the suit is on appeal, the subsequent action would constitute an abuse of process. This was the position of the Court in Lawal & Ors v. INEC & Ors [2019]LPELR-47687 CA.
24. The Law is that abuse of Court process in regard to multiple actions between the same parties on the same subject matter may arise when a party improperly uses judicial process to the irritation, annoyance and harassment of his opponent in respect of the same subject matter and also in respect of the same issues in the other actions. See the cases of Okafor v A.G. Anambra State [1991] 6 NWLR (Pt. 200) 659 at 681; Saraki v Kotoye [1992] 9 NWLR (Pt. 264) 156. In the case of Globe Motors Holdings Ltd v Honda Motor Co. Ltd [1998] 5 NWLR (Pt. 550) 373 at 381, the Supreme Court said: "An instance of such (abuse) ... is in the form of vexatious and oppressive actions... when an action is instituted deliberately to circumvent the cause of justice and to bring the judicial process into ridicule and contempt...” see the case of Onwuneme & Anor v. Customary Court Mbawsi & Ors [2018] LPELR-44474(CA). I have perused the processes filed by the claimant and found no such indication or similitude of abuse of the processes of the Court or where the judicial process of this Court was deployed to the irritation and annoyance of the defendant. The crux of the claimant suit as rightly stated by the counsel to the claimant, is one that centers on claims for the wrongful determination of his employment and by Section 6(6) (b) of the 1999 Constitution as amended the claimant has the unfettered right to ventilate his grievance before the Court. There is nothing to show that claimant case as presented is an abuse of Court process as the defendant wants this Court to believe. Learned defence counsel failed to substantiate his assertion with any evidence. It is in absence of this that I find that the argument of the defendant in this instance lacks merit and thus discountenanced.
25. It is of note that learned claimant’s counsel during trial objected to the admissibility of Exhibit P2 the National Pencom document on the premise that it was not pleaded and that it is a computer generated evidence and also that the certificate of compliance filed by the defendant in adherence to Section 84 (4)(c) of the Evidence Act, 2011 did not mention the said document. The defendant in response stated that the said document is an attachment to a letter of indebtedness and by paragraph 20 of its witness statement on oath it pleaded same. He also stated that the document is an attachment to the original document hence the provisions of Section 84 of the Evidence Act supra does not apply. From a careful perusal of the document I have seen that the said document to start with is not one which must be in compliance with Section 84 of the Evidence Act, supra it is a Pension Clearance Certificate of the defendant from the National Pension Commission and not printed by the defendant directly to require the certificate of compliance as provided for vide Section 84 of the Evidence Act and Yes! It was duly pleaded by the claimant himself vide paragraph 20 (wrongly numbered as 7) of his witness statement of oath when he stated that “that I have suffered immeasurably by the wrongful act of my termination and the refusal of the defendant to pay my entitlement with special regards to the salaries, pensions and gratuities” and the defendant to prove against the claims of the claimant tendered the Pension clearance certificate. It is in view of this that I find and hold that the claimant argument is without merit and thus discountenanced.
26. It is the claimant’s contention at paragraph 26 of the Statement of claim that his appointment enjoys statutory flavor that the defendant did not only fail to accord him the privileges but also allowed the CEO at the time to abuse his office. On the other hand, the defendant averred that in its paragraph 18 of his statement of defence that the claimant’s employment with the defendant does not enjoy statutory flavor but rather an employment based on ordinary employer-employee relationship. The law is of common that there are basically three types of employment, they are; purely master-servant relationship; Employment at the pleasure of the employer/governor and Employment with statutory flavor because the terms and condition thereof are provided for and regulated by a statute. See Longe v. FBN Plc [2010] 1 NWLR (Pt. 1189) 1; Oak Pensions Ltd & Ors v Olayinka [2017] LPELR 430207. Employment that is of master/servant is usually governed and regulated by the terms and conditions agreed to by the parties in a contract, the right and the manner by which the employment is to be brought to an end by way of termination, resignation or dismissal, are all spelt out in the terms and conditions of the contract. The employer and employee are bound by the terms and conditions of the contract in their relationship and each would be liable for any breach thereof. See Osisanya v. Afribank (Nig.) Plc [2007] 6 NWLR (Pt.1031) 565. The claim in such a case would be for wrongful termination or dismissal in breach, violation or contravention of the agreed terms and conditions of the employment. It is where an employment is provided for and regulated by the provisions of a law or statute or regulation made thereunder that is said to enjoy statutory flavor, the employer and employee are also bound by the terms and conditions stipulated in the provisions of the law or statute that govern and regulate the employment. A breach, violation or noncompliance with the provisions by any of them would be unlawful because it is against the law or statute that governs and regulate the employment. The claim in such cases would be for unlawful termination of the employment since the termination would be contrary to, in violation of and against the provisions of the law or statute. Such termination would be declared, where the breach, violation and non-compliance is proved, to be unlawful, void and of no legal consequence in law. Reinstatement of an employee, in appropriate cases, could be ordered by a Court in such situations. See the cases of Olaniyan v. Lagos University [1985] 2NWLR (Pt. 9)599SC; Eperokun v. University of Lagos [1986] 4 NWLR (Pt. 1934) 162, UNTHMB v. Nnoli [1994] 8 NWLR (Pt. 363), 176. In this instant case, it is germane to say that the defendant on record is a limited liability Company, this was even pleaded by the claimant at paragraph 3 of the Statement of Material Facts. Exhibit P4, the particulars of Directors and other Incorporation documents tendered by the defendant evince that the defendant is a limited liability Company. There is no any contrary document on record to proof otherwise. Exhibits HE and HE7 (claimant’s offer of employment and Employee Handbook) on record are the documents that regulates claimant’s employment. It is in the light of all stated herein coupled with the incorporation documents of the defendant that I find that the claimant’s employment is purely that of master and servant and not statutorily flavoured as he claims. I so hold.
27. Next is the main crux of this suit, claimant by his reliefs 1 and 2 contend that the dismissal and termination of his employment by the defendant is in breach of the terms of his contract, unjust and unlawful. It is the claimant’s argument that after he received his letter of suspension to take effect from the 8th of August, he also received a letter of dismissal dated 13/8/2018 by the defendant without conducting a thorough investigation. He stated that he wrote a letter of Appeal to the defendant on 15/8/2018 and the dismissal letter was withdrawn on 8/10/2018 extending his suspension to 12/10/2018. The defendant on the other hand by paragraph 7 and 10 of its statement of defence stated that the claimant was found liable for dismissal or termination after he was given a fair administrative hearing. That his employment was never terminated as he was only suspended without pay and still its staff. It is the law that in the determination of the rights and duties of parties in an employment relationship, recourse should be had to the contract regulating the employment. In most cases two documents usually regulates the relationship, id est, the letter of employment and the defendant’s staff handbook. Where these two documents or either of the two exists, the Court is estopped from looking outside the terms of contract as agreed by parties. See the case of Daodu v. U.B.A Plc [2004] 9 NWLR (Pt. 878). What parties to a contract of employment had agreed upon as their terms and same reduced wholly into writing must be given necessary effect. See the case of Ladipo v. Chevron Nig. Ltd [2005] 1 NWLR, (Pt. 907) @ 277. The claimant tendered before this Court his contract of employment with the defendant, marked as exhibit HE and HE7. The defendant is in ad idem with the fact that these exhibits regulate the terms of employment between it and the claimant.
28. Now the pertinent question to ask from the circumstances surrounding this suit is what is the status of the claimant with regards to his employment relationship with the defendant? Is he still a staff of the defendant as alleged by the defendant or his employment has been determined constructively by the defendant. The defendant vide paragraphs 4.9 to 4.20 of its written submission argued that the claimant does not appear to understand the difference between termination and dismissal. That in one breathe he alleged for unlawful and wrongful dismissal and in another wrongful termination and that his employment was never determined as he is still its staff but was suspended without pay. It is clear from the documents tendered by parties that the claimant on the 7th August, 2018 was suspended without pay for three days with effect from 8th of August, 2018 and on the 13th of August, 2018 he was dismissed. That sequel to the claimant’s letter of dismissal dated 13th of August, 2018 he wrote a letter of Appeal dated 15th August, 2018 to the defendant and on the 8th of October, 2018 the defendant vide a letter exhibit HE5, responded to the claimant’s letter of Appeal withdrawing the letter of dismissal. The letter is thus reproduced;
“StarTimes RC:834125
October 8th, 2018
Plot 87, Gaduwa Estate,
Gudu District
Abuja FCT
Dear Mr Henry Eyo,
ALLEGED GROSS MISCONDUCT
The Chairman of the Board of NTA Star TV Network via a letter dated September, 4 2018, has requested a review of the decision of Management in respect to the incident involving you and Mr Fan Xin on August 7 2018. To this effect, your letter of dismissal is hereby withdrawn and your suspension from office is extended to 12th October, 2018.
The Chairman of the Board has also recommended that a fresh panel be constituted to re-investigate the matter. The final decision of Management will be duly communicated to you.
You are hereby invited to appear before the panel on Thursday, 11th October, 2018 with any additional information or elect to rely on your previously written statement.
For NTA-STAR TV NETWORK LTD
Yours faithfully
Paschaline Aneke
Ag Human Resources Director”
It is pertinent to state that the claimant on the 16th of November, 2018 vide exhibit P, was intimated by the defendant of the Extension of his Suspension Period wherein it stated as follows;
“StarTimes RC:834125
November 16th, 2018
Plot 87, Gaduwa Estate,
Gudu District
Abuja FCT
Dear Mr Henry Eyo,
EXTENSION OF SUSPENSION PERIOD
In order to enable the Board of NTA-Star TV Network Ltd to deliberate on the issue of your alleged gross misconduct involving you and Mr Fan Xin on August 7th 2018, the management by this letter wishes to inform you that your suspension from work without pay is hereby extended till such time when the Board sits and takes its final decision.
Kindly note that your suspension takes effect from October, 15th 2018 and you may be contacted for further information.
Yours faithfully,
For; NTA –STAR TV NETWORK LTD
Paschaline Aneke
Ag Human Resources Director”
29. It is obvious from the above letters written by the defendant that the claimant’s letter of dismissal was withdrawn by the defendant the effect of which is that he is still a staff of the defendant and in the employ of the defendant as confirmed by the defendant, but on suspension. Suspension of a person from work in law is a temporary measure pending the outcome of the disciplinary process against him. See the case of NJC & Ors v Aladejana & Ors [2014] LPELR 24134 CA. By Longe v. First Bank supra; Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. It is settled law that an employer has power and right to discipline its employees in order to ensure orderliness and discipline in the organization/business and such disciplinary actions includes but not limited to issuing of queries, warning, suspension, interdiction, termination and dismissal. See the cases of Mr. Torkuma Abunku v Benue State Government & 6 Ors [2016] 65 NLLR (Pt 232) 613; Adekunle v UBA Plc [2016] LPELR 41124 CA. Suspension of a person from work is a temporary measure pending the outcome of the disciplinary process against him see the case of Foluso v. Enterprises Bank Ltd [2019] LPELR-48030CA; Longe v First Bank of Nigeria Plc supra. Suspension is a step taken before finally deciding what disciplinary action is to be taken by an employer against an employee. Suspension by an employer of an employee only means that the employee has been stopped from performing the normal or ordinary functions or duties of his office, while he remains in the employment. See the case of University of Calabar v. Esiaga [1997] 4 NWLR pt. 302 p. 719. Where an employee is placed on suspension, he is placed on hold that is, in anticipation of either being recalled or laid off permanently. See SPDC (Nig.) Ltd. v. Emeharu [2007] 5 NWLR pt. 1027 p. 347 @ 376; Udemah v. Nigerian Coal Corporation [1991] 3 NWLR Pt. 180 P. 479 @ 486." Per BDLIYA, J.C.A. (Pp. 29-30, paras. A-A). See also the cases of MIAPHEN v UNIJOS Consultancy Ltd [2013] LPELR 21904 CA; Adekunle v UBA Supra. In the case of NEPA v Olagunju [2005]3 NWLR (PT 913) 602; the Court held that it is the prerogative of an employer to discipline its employee, however it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to suspension as a form of discipline by the employer.
30. In Mobil Producing Nig Unltd & Anor v. Udo [2008] LPELR -8440 CA. The Court of appeal held that “Whether the employer has the power to suspend the employee for misconduct depends upon the terms of the particular contract of employment. Suspension will be wrongful on the part of the employer if there is no power to suspend given by the contract; in such a case the employee-may sue for wages he has lost by being suspended". In other words a legal consequence of suspension is determinable from the terms of employment. In this instant case, a keen perusal of the defendant employee handbook discloses at paragraph 10.3 the provision for suspension and I reproduce same as follows;
10.3 Suspension
The managing director or his or her designate may suspend an employee for a specific period as punishment for an offence or to allow for further investigations into the alleged misconduct. Suspension shall be for a duration, which time a final decision on the issue must have been taken and the final punishment determined.
During the period of suspension, the employee will be without pay. If the staff is exonerated, the balance of his or her basic salary and other entitlements shall be paid from the date of suspension.
Indefinite Suspension
An employee shall be placed on indefinite suspension where an allegation of fraud is levelled against such a staff. The purpose of which would be to ensure that the accused staff is removed from the environment where he she can influence or tamper with evidence(s) while the investigation is on-going.
The duration of an indefinite suspension will be determined by the length of time its takes for the organization to conclude such an investigation.
During the period of indefinite suspension, the employee will be without pay, if the staff is exonerated, the balance of his or her basic salary and other entitlements shall be paid from the date of suspension.” (underline mine for emphasis)
31. The claimant in this suit has been on suspension from the 7th of August, 2018 until today 19th of March, 2021 which to me is an indefinite suspension. It is apparent from the provision of the terms of the contract binding on both parties that the defendant has the power to suspend its employee without pay and indefinitely too but the question to answer is, is this power to suspend indefinitely without pay absolute? No and I say so in view of the plain provision of the above captured terms of the contract that the power of the defendant to suspend the claimant indefinitely and without pay is limited to where an allegation of fraud is levelled against such a staff. It is the law of common that where the words used in a document are clear and unambiguous, the Court ought to give them their plain, ordinary and natural meaning. Differently put, words in a document are construed in their ordinary meaning when the language is not only plain but admits of but one meaning, the task of interpretation is negligible. See the cases of Yankey v Austin [2021] NWLR (Pt 1757) 227; Attorney General of the Federation & 2 ors v Alhaji Atiku Abubarkar & 3 ors (SC 31/2007); [2007] NGSC 118; Swanta v Aya [1991] 2 NWLR (Pt 177) 15; Tumsah v FRN [2018] 17 NWLR (Pt 1648) 238; General Cotton Mill Ltd v Travellers Palace Hotel [2018] LPELR 46311SC. As stated earlier the defendant has a right to indefinitely suspend the claimant without pay but on the premise of fraud alone and that is not the case in this suit as the claimant vide his letter of suspension shows that he was suspended on the grounds of “gross misconduct involving his alleged brawl with another staff during office hours.” If I may ask, where then did the defendant derive the power to suspend the claimant indefinitely when his alleged offence was not predicated on fraud. I wouldn’t know as this is not evident on any of the documents on record. The implication of this is that the defendant acted outside its powers when it suspended the claimant indefinitely. In other words the defendant has breached the terms of its contract with the claimant. What this means is that at the time the claimant was suspended indefinitely on the ground of gross misconduct, there was no provision in the contract to that effect and undeniably is the fact that there is no express or contractual right of the defendant to suspend him indefinitely as it did on the 7th of August, 2018. In effect it is obvious and crystal clear that the defendant having suspended the claimant from its employ since the 7th of August, 2018 uptill date 22nd of March, 2021 points to the facts that it does not want to continue its employment relationship with the claimant. It is in my respectful view that the defendant by its letter dated 16th November, 2018 informing the claimant that “that your suspension from work without pay is hereby extended till such time when the Board sits and takes its final decision.” Points to one fact and that is the fact that it no longer want the claimant in its Company. How else can it be explained that the defendant has since 16th November 2018 never had its Board meeting to deliberate on claimant’s fate. The law is trite that an employment can be said to have been wrongfully determined if it was done in contravention of the terms and conditions regulating the contract of service or differently put was terminated in a manner not contemplated by the stipulations in the condition of service. See the cases of Union Bank Plc v. Salaudeen [2017] LPELR-43415 CA; Union Bank of Nigeria Plc v. Chinyere [2012] 2 NLLR, P.41 @ 62. Meanwhile as stated supra, it is obvious that the defendant no longer wants the services of the claimant. By the decision in the case of Osakwe v. Nig. Paper Mill Ltd [1998] 10 NWLR (PT. 568) 1SC. where the Apex Court held that in a master servant relationship a servant will rarely be forced on a master and vice versa, it is with regard to this position of the law that I find that this Court cannot foist the claimant on the defendant. See also Imoh v. I.T.G.C. [2004] NWLR (PT. 703) 281 CA. It is in consequent upon this that the Court finds that the defendant has constructively terminated the claimant's employment today the 22nd of March, 2021. It is in the light of this that I find that the act of the defendant terminating the employment of the claimant is wrongful and in breach of the terms of his employment. I so find and hold.
32. The claimant claims that he is entitled to all his outstanding salaries and every other entitlement from his employment with the defendant. It is the law that he who asserts must prove. The onus is on the claimant to prove that he is so entitled on the preponderance of evidence. See the case of Union Bank v. Ravih Abdul & Co. Ltd [2018] LPELR-46333 SC. Having held that the indefinitely suspension of the claimant without pay and without express power is wrongful what is the effect thereof. I have no hesitation in coming to the reasonable conclusion that the claimant is entitled to his salaries and allowances during the period of indefinite suspension without pay from 7th August 2018 till date, the 22nd March, 2021. See Foluso v. Enterprise Bank Ltd supra; ACB v Ufondu [1997] 10 NWLR. (PT 523) 169, where it was held in both cases that where there is no express provision in the contract of employment for suspension (and in this instant case suspension of the claimant indefinitely not on the ground of fraud as expressly stated in the handbook), Claimant’s monthly salary as evinced on record specified in his employment letter, is the sum of N703,200, this has however been increased upwardly to N1,000,000.00 per month, Accordingly, claimant is to be paid his salaries and every other entitlement from August 2018 to March 2021 which is (32 months), thus 32 months multiplied by monthly salary of N1,000,000.00 will give a total sum of N32,000,000.00. Accordingly, claimant is therefore entitled to be paid the sum of N32 million as his accrued salaries and allowances. I so find and hold.
33. Claimant equally claims the sum of N10,000,000 as General damages arising from the defendant’s breach of the contract of employment between the claimant and the defendant. The law is trite that where a breach is being established, nominal general damages will follow without need to specifically plead or prove the damages. See the cases of: SPDC Ltd v. Nwabueze [2013] LPELR-21178 (CA) Pg. 33, Felix George and Company Ltd v. Afinotan & Ors [2014] LPELR-22982 (CA) Pg 52. It is well settled that once it has been found by a Court that a party is liable for breach of contract as in the instant case, award of general damages will follow and such damages need not be specifically pleaded as they are not in the nature of special damages. In determining the quantum of damages to be awarded, the Court is to exercise its discretion taking into consideration the evidence before it. In the case of Ekan Afolabi v Mr. Stephen Ola [2016] LPELR-40186 (CA), this Court held that: "The law regarding general damages presumes damages as flowing from the wrong complained of by the victim. Such damages in law need not be "specifically pleaded and strictly proved. In other words, general damages are compensatory damages for harm resulting from the tort for which the party has sued. See the cases of UBN Plc. v. Ajabule [2011] 18 NWLR (Pt. 1278) 152 SC; Husseni v. Mohammed [2015] 3 NWLR (Pt. 1445) 100." Also in the case of Unity Bank Plc & Anor v. Onwudiwe & Anor [2015] LPELR-24907 (CA) Pg. 43-45, that: "The law is that once a breach of contract is established as in this matter, damages follow. General damages are those losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved. General damages are awarded by the Court to assuage the loss caused by an act of the adversary. See also the case of GTB v. Dieudonne [2017] LPELR 43559 CA. Having held that the claimant is entitled to all his salaries awarding him damages will amount to double compensation which the law abhors. It is in view of this that I find that claimant’s claim fails.
34. The claimant claims for cost of action. It is the law that cost follows event and it is usually at the discretion of Court which must be exercised judicially and judiciously. A successful party the law is trite is entitle to cost. I thus find that the claimant having succeeded in the most part of his claims is entitled to cost. It is therefore, in exercise of my discretion that I award the sum of N200,000 .00 as cost to the claimant. I so award.
35. The claimant also claims salary from time of dismissal to retirement age. It is held supra that the claimant’s employment was never dismissed but constructively terminated today 22nd of March, 2021. Now can the claimant claim for his salaries from the time his employment was constructively terminated till his retirement? The law is that a Servant who has been unlawfully dismissed/ terminated cannot claim his wages for services he never rendered. In the case of Denmark Production Ltd v. Boscobel Productions Ltd [1968] 1 ALL E. R.513 at p. 524. The Court held that the appellant cannot just sit down with arms folded hoping for his salary from 1/4/78 till the age of 60 years to fall like manna from heaven. See also the cases of Good man vs. Peacock [1850] 15 Q. B 576, French vs. Brooks [1830] 6 Bing 354, Lerongo v. Dsidal [1847] 1 Exch 295. Following the reasoning of the Court, the claimant cannot in this instant case be entitled to his salaries from time of dismissal to retirement age. I so find and hold.
36. Claimant claims that he is entitled to his monthly contributory pension fund from the time of employment to the time of dismissal. It is trite that he who asserts must prove the existence of his assertion see Section 131 of the Evidence Act, supra. The claimant in prove of his claim tendered exhibit HE his offer letter where it is written as part of his terms of employment that his salary will be deducted and payable to a pension scheme of his choice. The defendant in this suit tendered Exhibit P2 and it clearly shows that the defendant remits the claimant’s monthly contribution to his PFA ARM Pension Managers Ltd in year 2018, there is however, no other document on record to evince that it remitted into claimant’s pension fund administrators his 2019 pension till date which in law is its counterpart contribution to the claimant’s PFA is to be calculated and remitted to his PFA within one month of this judgment. I so Order.
37. Claimant claims for post judgment interest as may be deemed appropriate by the Court in this case. By the provisions of Order 47, Rule 7 of the National Industrial Court of Nigeria Rules 2017 it provides that at the time of making any judgment or order, may order interest at a rate not less than 10% per annum to be paid upon the judgment sum, clearly, the provisions vest a discretionary power in the Court to order, as it deems fit, that interest at the rate of not less than 10% be paid upon any judgment sum entered by it in favour of a party. Since the power is discretionary in the Court, like all other judicial discretion, it is to be exercised judicially and judiciously taken into consideration, the peculiar facts and circumstances of the case leading to the judgment. See the cases of Dokubo Asari v. F.R.N. [2007] 12 NWLR (Pt. 1048) 320; Sanni v. Agara [2010] 2 NWLR (Pt. 1178) 371. In the present case, there is a need to award a post judgment interest of 10% against the defendant in the event they failed to pay the claimant the judgment sum within 30 days of this judgment. I so find and hold.
38. On the second issue, it is the counterclaimant claim that the termination of the employment of the claimant was lawful and in accordance with the defendant’s handbook. I have earlier held that the determination of the claimant’s employment is wrongful, therefore counterclaimant’s claim fails.
39. Counterclaimant claims the sum of the N1,686,445 (One Million Six Hundred and Eight Six Thousand, Four Hundred and Forty-Five Naira) only being debt owed to the defendant by the claimant. The defendant to counterclaim by a letter dated 27th September, 2018 was reminded of his indebtedness to the defendant in the sum of N1,044,479.00. The defendant to counterclaim vide an email dated 27 September, 2018 admitted to the said sum. It is trite that admitted facts needs no further prove. See Section 123 of the Evidence Act, supra. It is in this view that I find that the defendant to counterclaim is indebted to the counterclaimant in the sum of N1,044,479.00. I so find and hold.
40. The counterclaimant claims the sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) as reasonable attorney’s fee paid for defending this suit. The law is that a claim for legal fees it paid to his Solicitor is not one that is ordinarily granted by a Court. See the cases of Ihekwoaba v African Continental Bank Ltd [1998] 10 NWLR (Pt 571) 590 at 610-611, Nwanji v Coastal Services (Nig) Ltd [2004] 11 NWLR (Pt 885) 552. It is correct that in the case of Guinness (Nig) Plc v Nwoke [2000] 15 NWLR (Pt 689) 135 it was suggested that such a claim was unknown to our law. The correct position of the law, however, is that for a claim for solicitor's fees to succeed, it must be specifically pleaded as special damages and must be proved by credible and cogent evidence. See the cases of Agbalugo & Anor v. Izuakor [2017] LPELR 43289 CA; Intercontinental Bank Ltd v Brifina Ltd [2012] 13 NWLR (Pt 1316) 1, Obasanjo Farms (Nig) Ltd v Muhammad [2016] LPELR-40199(CA). I find no single document or evidence on record in prove of this claim. There is nothing revealing on record that the counterclaimant paid any sum to its lawyer as legal fees. It is in the absence of proof of this relief that I find and hold that the counterclaimant’s claim for attorney’s fees fails.
41. The counterclaimant claims the cost of this action in the sum of N1,000,000.00. The award of costs is always at the discretion of Court exercised reasonably as I stated earlier in this judgment. It is however well settled that a successful party is entitled to costs unless there is any disenabling circumstance to deprive him that entitlement. See the case of Okafor v Lemna Construction Co. Ltd & Anor [2018] LPELR 46001 CA. The counterclaimant having failed in the most part of its claims is not entitled to an award of cost. I so find and hold.
42. On the whole claimant’s claims succeed in parts and counterclaimant claim succeeds in parts too. For the avoidance of doubt I declare and order as follows;
1. That the termination of the claimant’s employment by the defendant is in breach of his contract of employment and thus wrongful.
2. That the claimant is entitled to his outstanding salaries and every other entitlement from his employment with the defendant in the sum of N32,000,000.00. (Thirty two million, Naira only).
3. That the claimant claim for general damages fails.
4. That claimant’s claim 5(ii) fails.
5. That the counterclaimant claim ‘a’ fails.
6. That the counterclaimant is entitled to the sum of N1,044,479.00 and this should be subtracted from the sum of N32,000,000.00 awarded to the claimant as his outstanding salaries and entitlements.
7. That counterclaimant’s claims ‘c and d’ fail.
8. That this judgment is to be complied with and all judgment sum paid to the claimant within 30 days of this judgment, failing which it is to attract 10% interest per annum. Except the remittances to claimant’s PFA which is to be paid within 14 days from today.
9. Cost of N200,000.00 is awarded to the claimant and this is to be paid by the defendant together with other judgment sums.
Judgment is accordingly entered
Hon. Justice Oyewumi O.O.
Presiding Judge