IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATED: 21ST OCTOBER, 2022 SUIT NO: NICN/ABJ/254/2021
BALOGUN BABAWANDE - CLAIMANT
1. HYPERLINK TECHNOLOGIES
2. MARTINS ADEWUYI - DEFENDANT
3. COMFORT AKPAN
Oyedeji Ayodele Esq with Naomi Abang Esq. for Claimant.
Chris Ohene Esq with M.D. Kyaagba Esq., Solomon Bernard Esq. and Ishaq Muhammed Esq for the Defendants.
1. A perusal of the Originating process evinces that this action is declaratory. The law is of common that a party who seeks a declaratory relief must rely on the strength of his own case to prove that he is entitled to the reliefs sought. Thus, a Claimant who seeks a declaratory relief needs to satisfy the Court on the balance of probabilities to be entitle him to same. As such, declaratory reliefs cannot be granted in the absence of credible defence or on admission of the defence but on satisfactory and credible evidence by the Claimant. See Adamu v. Nigerian Airforce  5NWLR (Pt 1822)159@177, Paras F-G; 178, Paras E-G (SC) and Adesina v. Airfrance 8 NWLR (Pt 1833)523@555-556, Paras H-B (SC); PDP v. I.N.E.C 7 NWLR (Pt 1300)538@561, Paras F-H. However, the law does not preclude such a Claimant from relying on aspects of the defendant’s case which supports his own. See the case of Hanatu v. Amadi  9 NWLR (Pt 1728) 128, Paras A-C.
2. It is the Claimant’s case that he was an employee of the 1st defendant whose principal officers are 2nd and 3rd defendants and that he started out his career with the 1st defendant as a Trainee Engineer even though he was unable to get his appointment letter. He however resumed work with the Abuja office of the 1st defendant in January, 2021and continued to carry out his duties diligently without any infraction until the 15th day of March, 2021 when he was asked vide a letter dated same date to proceed on an indefinite suspension for no cause. He averred further that he was never given any opportunity to be heard even if there was a genuine allegation and he was paid his salary for the month of February, 2021 being the sum of N60,000. He had requested the defendants to retract their derogatory description of him in the letter of suspension but same yielded no result. The said derogatory and malicious description of his person by the defendants have affected his image in his professional field as a young Engineer. He averred finally that his indefinite suspension without affording him a hearing is vindictive, illegal and contrary to the extant laws in Nigeria and in the labour world.
3. It is against this backdrop that Claimant took out a General Form of Complaint against the defendants on the 22nd day of September, 2021wherein he is claiming against the defendants as follows-
a. A DECLARATION that the indefinite suspension from the services of the 1st Defendant and or termination of the engagement/employment of the Claimant by the 1st Defendant through the 3rd Defendant without having regards to due process of law is wrongful, unlawful, illegal and contrary to all known rules of termination of employment in all known labour laws.
b. A DECLARATION that the labeling and describing the Claimant as insubordinate and rebellious fellow without due process and/or fair hearing is repugnant to natural justice, equity and good conscience.
c. AN ORDER of this Honourable Court directing the Defendants to pay to the Claimant forthwith all his entitlements and salaries from the date of his alleged indefinite suspension till the termination of this case.
d. AN ORDER of the Honourable Court directing the Defendants to pay to the Claimant the sum of N20,000,000.00 (Twenty Million Naira only) as general damages for the said unlawful termination and for the mental and psychological trauma and stigma the Claimant is subjected to on the account of his unlawful disengagement and reasons given for the said disengagement.
e. Cost of this suit in the sum of N200,000.00 (Two Hundred Thousand Naira only).
f. AND for such further order or other orders as the Honourable Court may deem fit to make in the circumstances of the case.
4. The defendants on the other hand vide their joint statement of defence filed on the 6th day of December, 2021averred that Claimant was engaged to provide contract of service on freelance basis which requires no letter of employment and there was no agreement between the parties on the time and manner of resumption of work for the services of the unskilled handy man errand services rendered by Claimant which cannot be assessed or evaluated. That Claimant was on several instances warned of his misdeeds which eventually earned him a letter of indefinite suspension in order to checkmate any security breaches after several demands for him to cease coming to the office was neglected. They equally averred that the allegations against Claimant is not a criminal offence that needs to be proved as he is a freelance handy man and there was no existing contract between them and Claimant as claimant was not in its employment at any time. They went further that the relationship between parties is a contract of service which is not defined and which is not regulated by any labour as it is not an employment.
5. On the 28th March, 2022 Claimant opened his case and testified for himself by adopting his written statement on oath as his oral evidence. Documents marked Exhibit B1-B2 were tendered through him without objection from the defendants. However, the defendants opted not to exercise their right of cross examination. Afterwards, Claimant’s case was closed and the matter was adjourned for defence. On the 11th day of May, 2022 the defendants opened their case and called one Sunday Ogundare as the DW who adopted his written statement on oath as his oral evidence. Claimant equally chose not to exercise his right of cross examination after which the case of the defence was closed. The matter was subsequently adjourned for adoption of final written address.
6. On the 23rd May, 2022, the defendants filed their final written address which was adopted on the 20th day of July, 2022 wherein learned counsel on their behalf formulated a sole issue for determination thus
Whether from the totality of the claim and evidence adduced, the Claimant has proved his case entitling him to judgment or grant of reliefs sought.
7. Learned counsel submitted in respect of the above issue that the Evidence Act, 2011(hereafter referred to as EA) is the primary law governing admissibility of evidence. He relied on the case of Federal Republic of Nigeria v. AV. M. Alkali, Mohammed Manu 15 NWLR (Pt 1747)354, Para C. He submitted that Exhibit B1 which is a photocopy of the letter of indefinite suspension was admitted without proper foundation being laid for it as requested by Section 89(1) of the EA. He submitted that the document is only admissible as secondary evidence when proper foundation is laid. He cited in support the case of Isitor v. Fakorade 1 NWLR (Pt 1069)602@626, Paras E-F. He submitted that where such inadmissible evidence is admitted, the Court is duty bound not to act on it. He relied on the case of Nwadinobi v. M.C.C. (Nig) Ltd 1NWLR (Pt 1494)455, Paras B-D. He urged the Court to discountenance Exhibit B1.
8. Learned counsel submitted that for there to be a valid contract there must be offer and acceptance. He submitted that Claimant presumed that a contract or employee or employer contract was terminated wrongly failed to tender any evidence of employment. He submitted also that the defendants on their part deny the existence of a contract of employment and they stated that Claimant was nothing more than a handy man service provider who was suspended through Exhibit B1 on account of his failure to discontinue his daily presence in their office premises and for likely unforeseen security breach. He submitted that the failure of Claimant to cross examine the DW means that the averments are deemed admitted. He cited in support following cases; All Progressives Congress v. Independent National Electoral Commission 8 NWLR (Pt 1462)531@587, Para B and; Long John v. Blakk 1988]6 NWLR (Pt 555)524@547, Para H. He urged the Court to hold that Claimant has failed to prove his claim for failure to cross examine the DW.
9. Although learned counsel did not formulate any issue bothering on the jurisdiction of the Court, he however made some copious submissions on jurisdiction. Learned counsel submitted that this Court lacks jurisdiction to entertain reliefs b and d. He relied on the case of Madukolu v. Nkemdilim 1962]1 ANLR 587 and Zakari v. Nigerian Army 17 NWLR (Pt 1487)77@97, Paras B-E. It is learned counsel’s submission that paragraphs 18, 19 21 and 22 of the statement of facts in support of those reliefs evinces that the subject matter is on defamation of character and this Court is not the appropriate Court for such. He submitted that Section 254 C of the Constitution of the Federal Republic of Nigeria, 1999(as amended) (hereafter referred to as the Constitution) vests jurisdiction on this Court in respect of labour and employment issues. He submitted that the appropriate place for the grievance is High Court of the Federal Capital Territory. He relied on Section 257 (1) of the Constitution. He equally submitted that Claimant’s claim of defamation will equally fail because a person’s reputation is not based on the good opinion he has of himself. He cited in support the following cases; Nsirim v. Nsirim 3 NWLR (Pt 138)285@ 389 and; Skye Bank v. Akinpelu 42 (Pt 1)NSQR 507@525-526. He urged the Court to decline jurisdiction on relief b in view of the averment contained in paragraphs 18, 19, 21 and 22.
10. Learned counsel equally submitted that the suit of Claimant has not disclosed a cause of action against the 2nd and 3rd defendants. He submitted that through out the statement of claim no claim or relief was sought against them and claimant has not shown how they wronged him who are agents of the 1st defendant. He urged the Court to hold that the 2nd and 3rd defendant are not necessary parties to the suit. He relied on the case of Green v. Green LPELR-1338(SC)20, Paras C-G. He maintained that a limited liability company maintains a distinct liability from its directors or shareholders and as such the acts of the company cannot be imputed to its directors.
11. On the 11th day of June 2022 Learned counsel on behalf of Claimant filed his final written address deemed adopted on the 20th day of July, 2022 wherein he formulated two issues for determination thus;
1. Whether from the totality of the claim of the Claimant before the Honourable Court, the Court has jurisdiction to entertain and adjudicate over the case of the Claimant.
2. Whether from the totality of the claim of the claimant and oral and documentary evidence adduced by the Claimant it can be founded that the claimant has proved his case to entitle him to grant of the reliefs sought from the Honourable Court.
12. In respect of issue one, learned counsel submitted that Constitution vide Section 254 C(1) (a) gives the National Industrial Court jurisdiction and that jurisdiction of a Court is always circumscribed by the enabling statute. He relied on the case of Tumsah v. FRN 17 NWLR (Pt 1648). He submitted that the totality of the claims of the claimant together with the reliefs sought are within the jurisdiction of this Court. He submitted that Claimant’s reliefs are sought to remedy the wrong occasioned during the course of employment. He relied on the case of Ogiamen v. Gulf Mining Services Nig. Ltd 66 N.L.L.R (Pt 235). He submitted that the claimant’s case is against the injustice that has to do with his employment.
13. On issue two, learned counsel submitted that from the totality of evidence, there is no doubt that there existed a contract of employment between parties. He relied on Section 91 of the Labour Act, Cap L1 Laws of the Federation. He submitted that going by the definitions given to a contract of employment and an employee in Section 91 above there was a valid contract of employment between parties which will not be affected by the mere fact that Claimant could not produce a letter of employment. He submitted that the agreed that Claimant was engaged on a contract of service though there was no document written which facts were stated in the DW’s written statement on oath. He submitted that the term ‘contract of service’ used extensively by the defendants described the type of relationship existed between parties. He submitted that an employer before determination of employment must give reason for termination. He relied on the case of Wuyah v. FBN Plc 66 NLLR (Pt 235). He submitted that on the strength of this case, the defendants ought to prove the reason adduced against the Claimant. He submitted that the defendants who averred that Claimant was on several occasions given query and rebuked could not provide any evidence to substantiate this claim. He submitted that Claimant was aggrieved by the ill description given him in Exhibit B1 as seen in his solicitor’s letter in Exhibit B2. He relied on the Sketch v. Ajagbemokeferi 1989]2 SCNJ 151 @169.He submitted that what the publisher of defamation intends to communicate is of no importance. He cited in support the case of Makinde v. Omaghomi 2011]5 NWLR (Pt 1240)249@267, Para D.
14. Learned counsel equally submitted that Claimant having proven his case against the defendants is entitled to cost which ordinarily follows event. He cited in support Order 55 of the National Industrial Court (Civil Procedure) Rules, 2017. He submitted that Claimant has proven his case by credible and admissible evidence. He submitted that DW in his written statement on oath has admitted the existence of a master-servant relationship between claimant and 1st defendant and facts admitted need no further proof. He relied on Section 123 of the EA and the case of Oceanic Bank International Plc v. CSS Limited 9 NWLR (Pt 1305)397.
15. Learned counsel equally submitted that 3rd defendant is a necessary party to this action because he was signatory to the Claimant’s letter of indefinite suspension. He equally submitted that Claimant’s paragraph 5 which was admitted in paragraph 5 of DW, claimant stated that the 2nd and 3rd defendants acted on behalf of the 1st defendant on the incidence that gave birth to this suit. He submitted in conclusion that Claimant has proven his case before the Court and is entitled to reliefs sought.
16. I have painstakingly gone through all processes filed in this suit, the Exhibits tendered by Claimant and the submissions of counsel. I am of the view that the four issues that best determine this suit before this Court are;
1. Whether this suit discloses any cause of action against the 2nd and 3rd defendants.
2. Whether the Court is divested of the jurisdiction to entertain reliefs ‘b’ and ‘c’
3. Whether Claimant was in the employment of the 1st defendant and thus its employee.
4. Whether Claimant has proven his case to be entitled to reliefs sought.
17. On issue one, it is the contention of learned counsel for the defendants that this Court does not have jurisdiction over 1st and 2nd defendants as no cause of action has been made out against them. The law regarding cause of action is espoused in the age-long case of Egbe v. Adefarasin & Anor  5 SC, 50. The Court per Abubakar JCA in the case of Ros Jos Co (Nig) Ltd & Anor v. Africana Feb Publishers Ltd & Ors  LPELR- 43583(CA)1@16-17, Para E defines a cause of action thus; “a cause of action means a fact or combination of facts which when proved would entitle a Plaintiff to a remedy against the Defendant….” See also the case of Opia v. INEC  LPELR-22185 (SC)1@20, Para D-F. In the case of Barbus &Co (Nig) Ltd & Anor v. Okafor- Udeji  LPELR-44501(SC)24, Para A, the Apex Court per Kekere Ekun JSC held amongst other things that in determining whether a suit discloses a reasonable cause of action the Court considers only the originating processes filed by the plaintiff/claimant and in the case of a suit commenced by writ of summons, the Court will consider the facts as stated in the statement of claim while in a suit commenced by an originating summons, the Court is to consider the facts averred in the affidavit in support. It is trite that the question whether or not the claimant’s case would succeed is a different consideration altogether and not relevant at that stage of determining whether the facts disclose a reasonable cause of action. See the cases of Henry Stephens Eng. Ltd. v. S.A. Yakubu (Nig.) Ltd.  LPELR-1363 (SC)17, Para A – C and; AG Federation v. AG Abia State & Ors  LPELR-631 (SC)1@30, Para B. I have perused claimant self-styled pleading ‘statement of claim’ which should have been styled ‘statement of facts (and hereafter referred to as statement of facts) and there is no allegation in the whole paragraphs statement of fact against the 2nd defendant. Equally, apart from paragraph 12 which states that 3rd defendant signed the letter of indefinite suspension as the Head Admin Human Resources of the 1st defendant there is no other allegation against the 3rd defendant. In fact, Claimant in paragraph 5 of the statement of facts clearly averred that 2nd and 3rd defendants acted on behalf of the 1st defendant on the incidence that gave birth to this suit. Thus, the 2nd and 3rd defendants never in their personal capacity did anything to Claimant, they merely acted on behalf of the 1st defendant. Thus, Claimant has no specific grouse against them.
18. It therefore, follows and reasonable in the circumstance that the two named persons as 1st and 2nd Defendants were acting as agents and on behalf of a known and or disclosed principal. i. e. Hyperlink Technologies, the 1st defendant. It is trite that an agent acting on behalf of a disclosed principal incures no liability on his own, because the acts of such agent are acts of the disclosed principal. In other words, it is the principal who has done or omitted to do what the agent is accused of doing or omitted to do. The Latin maxim in this regard is "qui facit per aluim facit per se, a sum facere vindepur" Meaning he who does an act through another is deemed in law to do it himself. In the same vein, the Apex Court in the case of Iyere v. Bendel Feed and Flour Mills Ltd  LPELR- 1578(SC)1@31, Para A, held amongst other things that the act of an employee is deemed to be the act of an employer and as such the employer is vicariously liable for the acts of an employee done within the scope of employee’s employment. The consequence of the foregoing is that an action against an agent in his private capacity for acts done on behalf of a known and disclosed principal is incompetent. See the following cases; UBA Plc v. Ogundokun  6 NWLR (Pt. 1138) 450 @483-484 and; The Federal Government of Nigeria & Ors v. Shobu Nigeria Ltd & Anor  LPELR – 21457. It is in view of the foregoing that I find that the acts of the 2nd and 3rd defendants if any are acts of the employer, i.e. the 1st defendant. Consequently, the name of the 2nd and 3rd defendants are hereby struck out from this suit. I so find and hold.
19. On issue two, it is the contention of learned counsel on behalf of the defendant that this Court does not have the requisite jurisdiction to grant reliefs ‘b’ and ‘d’ because it is based on the tort of defamation which this Court does not have the requisite jurisdiction to entertain. It was submitted on the defendant behalf that the appropriate Court to entertain the said claims is the High Court of the Federal Capital Territory. Learned claimant’s counsel on his own part argued that this Court is imbued with the competence to adjudicate on the case of defamation in the workplace. Jurisdiction is the life blood and bedrock of all trials without which the trial will amount to a nullity. It is the life blood on which all trials thrive. See the following cases; Frozen Foods (Nig) Ltd v. Ojomo 14 NWLR (Pt 1850)299@330-331, Paras F-A; Okolonwamu v. Okolonwamu 9NWLR (Pt 1676)1@21, Para A; Odom v. P.D.P 6NWLR (Pt 1456)527@548, Paras C-D and; GTB v. Toyed (Nig.) Ltd & Anor  LPELR-4181 (CA). It is well settled that every Court derives its jurisdiction from its enabling law. Its jurisdiction to entertain a matter before it is strictly circumscribed by the provisions of the relevant law or by the Constitution. See the following cases; Ammani v. Balarabe 14 NWLR (Pt 1849)165@182, Para E (SC); Okorocha v. UBA Plc LPELR-45122(SC)1@ 17, Para C and; AG Lagos State v. Regd Trustees of Cattle Dealers Association of Lagos State & Ors LPELR-40475(CA)1@8, Para C. Section 254 A of the Constitution of the Federal Republic of Nigeria, 1999(as amended) (hereinafter referred to as “the Constitution”) and the National Industrial Court Act, 2006 (hereinafter referred to as NICA) provide for the establishment of the National Industrial Court of Nigeria. Further, Section 254C (1) provides for the jurisdiction of the Court.
20. I have taken a closer look at reliefs b and ‘d’ that learned counsel is challenging in this case being on defamation of character. I have equally read paragraphs 18, 19, 21 and 22 which learned counsel referred to in his final written address. Although those paragraphs of the statement of facts may seem to suggest that Claimant may be making out a case of defamation against the defendants, the reliefs sought especially relief ‘b’ and ‘d’ which is being challenged herein have nothing to do with defamation of character. I will explain why. While relief ‘b’ seeks a declaration that referring to Claimant as rebellious fellow without due process or fair hearing is repugnant to natural justice, equity and good conscience, condemnable and void. Relief ‘d’ on the other hand seeks the award of damages for unlawful termination and mental and psychological trauma and stigma. Let me also state that learned counsel on behalf of Claimant argued in his final written address along the line that Claimant has made out a case of libel against the defendant and sought reliefs relating to same in respect of which he is entitled to succeed having proven same. May I respectfully say that there is nothing in relief ‘b’ that suggests that it’s a declaration on defamation. There is no relief in the General Form of Complaint including reliefs ‘b’ and ‘d’ seeking for anything in respect of any defamation. Claimant in his reliefs has not sought any relief on defamation of character as both learned counsel would want this Court to believe. The guiding factor in determining what the Claimant seeks from the Court is the reliefs. Relief ‘b’ though referred to the way claimant was described in the letter of indefinite suspension is nonetheless not asking for any declaration on defamation. If anything, relief ‘b’ is asking for a declaration that calling him insubordinate and rebellious fellow without fair hearing is repugnant to natural justice, equity and good conscience same is condemnable, null and void. Thus, Claimant is by that relief in no way challenging the fact that he was called insubordinate or rebellious but challenging that he was labelled as such without being given fair hearing and without due process which according to him is repugnant to natural justice, equity and good conscience. Claimant by that relief wants the Court to declare that such act of calling him insubordinate and rebellious without fair hearing is repugnant to natural justice and not that it is defamatory or libelous. As such the relief is sought in respect of the rule of natural justice and not in respect of defamation and it will be a case of misinterpretation for anyone to argue otherwise. The rule of natural justice in respect of which the said relief was sought is expressed in the latin maxim audi alteram partem and nemo judex incaus sua meaning no one should be a judge in his own cause which are at the very core of the concept of justice. See the following cases Chukwuma v. FRN LPELR-863(SC)1@51, Para D and UBA Plc v. Unisales Int’l Nig. Ltd LPELR-24283(CA)1@27. The rule simply means that before any decision is arrived at, a party must be heard, or at least, given an opportunity of being heard. I do not understand how seeking for a declaration that a particular act of the defendant describing claimant as insubordinate and rebellious without fair hearing is repugnant to natural justice in relief ‘b’ is supposed to be a relief on defamation as parties are arguing. It is therefore clear that claimant’s grouse by that relief ‘b’ is not against the fact that he was labelled as insubordinate or rebellious but against the procedure followed before he was labelled as such which breaches natural justice. It would have been a different thing if Claimant is asking Court to declare that calling him insubordinate and rebellious is injurious to his character or defamatory but instead he is asking the Court to declare that calling him insubordinate and rebellious without fair hearing and due process is repugnant to natural justice, equity and good conscience same is condemnable, null and void. The relief sought is based on fair hearing/ natural justice and not based on defamation as parties would want this Court to believe.
21. Now as per relief ‘d’. Relief 'd' is clearly seeking for damages for unlawful termination, psychological and mental trauma he was subjected to on account of his unlawful disengagement. It equally has nothing to do with defamation of character or libel contrary to the assertion of learned counsel. With due respect to learned counsel, this Court just like any other Court has power to award compensatory damages in deserving cases and as such has jurisdiction over any relief claiming for damages. See Section 19 (d) of the NICA
22. The above being said, the Supreme Court in the case of F.C.E.T. , Gusau v. Abubakar 12 NWLR (Pt 1843)125@146, Paras A-G, 149, Para H, held that by the provisions of Section 254C(1)(a) of the Constitution the National Industrial Court is vested with jurisdiction to adjudicate on any matter arising from the workplace and that by virtue of Section 254C(1) (a) and (b) notwithstanding the provision of Section 251,257, 272 and anything contained in the Constitution and in addition to any additional jurisdiction that may be conferred on it by the National Assembly, it shall have jurisdiction in respect of matters contained therein in sub paragraph (a) and (b) of Section 254C(1) of the Constitution. See also the following cases; Chiroma v. Forte Oil Plc  LPELR-43873(CA)132, Para E and ; Salami v. NJC & Ors LPELR-22774(CA)1@24-27, Para A. Section 254 C(1) (a) provides thus: “Notwithstanding the Provisions of Sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil/causes and matters - (a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto.” In the case of N.D.I.C. v. Okem Enterprise Ltd  10 NWLR (Pt 880)107, it was held among other things that: “When the term "notwithstanding" is used in a section of a statute, it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself.” Thus “Notwithstanding” is a term of exclusion. It follows therefrom that, as used in Section 254(C)(1) of the Constitution, no provision of the Constitution shall be capable of undermining the said Section. Put differently, the term “Notwithstanding” used in Section 254C (1) of the 1999 Constitution means that no provision in the Constitution itself or any statute or legislation shall be allowed to prevail over the Provisions of Section 254C(1). As such, notwithstanding that the High Court of FCT as contained in Section 257 of the Constitution gives the High Court of the Federal Capital Territory unlimited civil jurisdiction, civil jurisdiction in respect of any matter connected with any labour , employment, trade unions, industrial relations and matters arising from workplace and the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto is vested in the National Industrial Court.
23. In the instant case assuming Claimant in relief ‘b’ in the General Form of Complaint is even claiming defamation this Court will still have jurisdiction. The alleged defamation in the said letter of indefinite suspension no doubt arose out of the workplace. The letter itself is clear in that Claimant was described as being insubordinate and rebellious to his seniors and management decisions. This alone goes to show that it is connected to the work and workplace of the Claimant. Thus, even if the Claimant by reliefs ‘b’ and ‘d’ is claiming that those words were defamatory of him, this Court would still have jurisdiction because the alleged defamation is a matter arising out of workplace upon which this Court to the exclusion of any other Court has been given jurisdiction by the Constitution. Section 254C(1)(a) has given exclusive jurisdiction to this Court in respect of matters connected with any labour, employment and matters arising out of work place. Thus, even if Claimant’s reliefs ‘b and ‘d’ are premised on defamation, I do not see how this Court is divested of the jurisdiction to entertain reliefs b and ‘d’. Be that as it may, reliefs ‘b’ and ‘d’ as stated supra have nothing to do with defamation as reasoned earlier in this judgment. I find that this Court is vested with the unwavering jurisdiction to entertain the case of Claimant and in particular, reliefs b and ‘d’ and there is nothing in this case to divest the Court of the jurisdiction to entertain this case or any part thereof. Accordingly, question two is resolved against the defendant. I so find and hold.
24. Before I address issue three above, let me address the objection raised by learned defence counsel to the admissibility of Exhibit B1 tendered by Claimant. The submission of learned defence counsel in the final written address on behalf of the defendant is that the photocopy of letter of indefinite suspension Exhibit B1 being photocopy which no foundation has been laid is not admissible and the Court ought not act upon it. Let me say that it is true that where a secondary copy of a document is to be tendered as posited by learned defence in his final written address, proper foundation must be laid as regards the where about of the original. See the following cases; Erebor & Anor v. Erameh & Anor 2020] LPELR-49671(CA)1@49, Para B and; Oyekanmi v. FRN  LPELR-47323(CA)1@40-41, Para B. However, it must be noted that although a document may not be admissible but parties may in some circumstances consent to its admissibility when it is being tendered. It is equally worthy of note that the best time to object to the admissibility of a document is when it is being tendered. See; Aminu v. Hassan 5NWLR (Pt 1400)287@322, Paras B-E and; Lawson-Jack v. SPDC (Nig) Ltd 13 NWLR (Pt 783)180@197, Paras F-G. In the case at hand, there is no doubt that Exhibit B1 was pleaded and it is relevant to the case and the issue at stake. Its existence is not equally in contention. The defendant’s only grouse is that it was improperly admitted in evidence. This contention however is coming rather too late in the day. It is like an attempt to close the stable after the horse has bolted out. I will proceed to explain why. In the case of Dikibo & Ors v. Izime LPELR-48992(CA)1@17-19, Para A, the Court held amongst other things thus; “The failure by the Appellants to object to the admissibility of the document in issue before the lower Court is detrimental to their case because as held by the apex Court where a document was not disputed then the issue of proof does not arise. Also, a document may be inadmissible but the parties can consent to its being admitted. Once this happened, none of the parties will be allowed to resile from such an agreement. See IBORI V. AGBI (SUPRA); G. CAPPA LIMITED V. DAILY TIMES OF NIGERIA LIMITED (2013) LPELR -22028 (CA) per AUGIE, JCA (as he then was). Thus where a document which is not intrinsically inadmissible but admissible upon the fulfillment of certain conditions, any objection to its admissibility must be raised timeously as failure to do so can be fatal as the party can no longer be heard to challenge same on appeal.” (Emphasis mine). See also Anagbado v. Faruk 1 NWLR (Pt 1653)292@306, Paras C-D. A perusal of the records of the Court shows that on the 28th day of March, 2022 when the said Exhibit B1 was tendered through Claimant, learned defence Counsel Chris Ohene stated that he had no objection to the tendering of the document. The document as such was admitted without any objection from the defendant as to its admissibility The said Exhibit B1 being a photocopy of a private document is not intrinsically inadmissible but only admissible on the fulfilment of the condition that proper foundation be laid for the where about of the original. Thus, any objection to its admissibility must be made timeously and failure to raise any such objection would be taken as consent to the admissibility of the document. It is too late in the day for the defendant who did not object to the admissibility of the photocopy of the letter of indefinite suspension to now be raising dust over the issue of the admissibility of the document in the final written address. As such, the objection of the defendant in the final written address to the admissibility of Exhibit B1 is discountenanced. Let me also point out that it is the law that the Court is bound to act upon uncontroverted and unchallenged admissible evidence before it unless it is either irrelevant or palpably false and incredible. See; Cameroon Airlines v. Mike Otutuizu  9 NWLR (Pt. 929) 202 and; Lawson v. Afani Continental Co. Nig. Ltd  2 NWLR (Pt. 752) 585. In the instant case, Exhibit B1 was a pleaded document and relevant to the case. In fact, the Claimant in this case is specifically challenging the said indefinite suspension communicated in the said Exhibit. It was admitted in evidence without any objection; it was uncontroverted by evidence of the defendants. The defendant also pleaded and frontloaded it. The defendant is not at all denying the existence of exhibit B1, or denying that it issued it to the claimant. In view of these facts, this Court can rely on the said Exhibit B1. More so, where the defendant pleaded and relied on same document but did not place before the Court the said letter. It is in consequence that I discountenance the objection of the defendant respecting exhibit B1 and hold that exhibit B1 is still an exhibit in this case.
25. Now to issue three, it is the position of the Claimant that he was an employee of the defendant but he was unable to get his letter of employment. That is, there is a valid contract of employment between him and the defendant. The defendants contended Claimant’s claims that he was an employee of the defendant and as such averred categorically in paragraph 14 of the joint statement of defence that there exists no contract of employment between them and the Claimant. In the same vein the defendant averred vide paragraph 21 of the joint statement of defence that no contract exist between it and the Claimant. It equally averred vide paragraph 22 that Claimant was not in the employment of the defendant at any time. However, same defendant in several paragraphs of the joint statement of defence particularly at paragraphs 3, 15, 23 and 24 of the said joint statement of defence that what it had with the Claimant was contract of service. Thus, the defendant who on one hand would want this Court to believe that there was a contract of service between the 1st defendant and Claimant is the same person who would also want the Court to believe that there was no contract whatsoever with the Claimant. It is a well settled principle of our law that a party must be consistent in the presentation of his case. Put in other words, a party is not allowed to approbate and reprobate on the same issue. It is a doctrine of equity and justice that it is inequitable to blow hot and cold which principle finds expression in the Latin maxim 'Allegans Contraria Non Est Audiendus. See the following cases; Uba v. Ozigbo 10NWLR (Pt 1839)431@460, Paras E-H (SC) and; LLSPIA Ltd v. M/T Tuma 10 NWLR (Pt 1784)347@395, Paras B-E, 399, Para E (SC). Thus, the defendant cannot in one breathe be saying that Claimant is engaged in a contract of service with the defendant and in another breathe that there was no contract whatsoever between defendant and the claimant. There is no doubt that contract of service is an employment contract which is divided into three broad categories, namely; master-servant employment; employment held at the pleasure of the employer and; employment with statutory flavor which are all distinct from Contract for service. See the following cases; Comptroller General of Customs v. Gusau  LPELR- 42081(SC)1@30-31, Para F and; CBN v. Igwillo  LPELR-835 (SC)1@20, Para B. The law frowns at such attitude of parties approbating and reprobating in their pleadings thinking perhaps that they might in so doing win some very cheap points in issue if the Court was so gullible as they thought it to be, but alas this Court is not as gullible or confused as the defendant thought it to be. It is in view of this that the Court discountenances with the averments of the defendant as regards the existence or non-existence of an employment relationship between the Claimant and defendant.
26. The only averment before the Court as regard the relationship between parties is that of the Claimant as those of the defendant has been discountenanced as a result of approbating and reprobating. However, there is no documentary evidence to back it up as claimant averred that he was not given a letter of employment. I am mindful of the fact that contract of employment may be in any form, and not necessarily in writing. A contract of employment may be inferred from the conduct of the parties if it can be shown that such a contract was intended although not expressed. It should be noted that the inference may be rebutted if such service is incompatible with employment. This may happen where the parties are relations or where the service was performed on the basis of a charity. Nevertheless, a contract of employment may be oral unless there is a statute requiring writing or deed. Section 91 of the Labour Act, Cap L1, Laws of the Federation of Nigeria, LFN, 2004 (hereafter referred to as Labour Act) is instructive and defines “a worker" to mean: “Any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written and whether it is a contract of service or contract personally to execute work or labour.” It however created some certain exceptions which are not applicable to the case at hand. The defendant maintained that Claimant was engaged on a contract of service and that the services rendered by him was unskilled handy man errand services. See paragraphs 3 and 5 of the joint statement of defence. Going by the definition above and if the averments of defendants in paragraph 3 and 5 is anything to go by, it is of no doubt that Claimant will still qualify as a worker under the Labour Act.
27. It is equally the position of Claimant vide his pleadings that he was employed as Trainee Engineer by the defendant of which all efforts to get his letter of employment proved abortive and that he received a monthly salary of N60,000. The defendant contended vide paragraphs 3,4,5 and 16 of the joint statement of defence that; Claimant was engaged to provide contract of service to the Company on freelance basis not requiring letter of employment and thus put Claimant to strict proof of the fact of his alleged engagement as Trainee Engineer; that no existing work agreement was made between the Claimant and the defendant on the time, manner and resumption of work; that the services rendered by the Claimant was unskilled handy man errand services which cannot be assessed or evaluated with any standard parameters and; that Claimant was paid the sum of N60,000 for the utility services he rendered. Generally, the only thing that determines the basic terms and conditions of employment is the letter of employment and as such must be tendered. See the following cases; Organ & Ors v. N.L.N.G LPELR-2094(SC) and; Morohunfola v. Kwara State College of Technology  4 NWLR (Pt 145)506. Thus, it is expedient that the letter of appointment/employment is brought before the Court as failure to do so may be fatal to the case of the parties. However, it must be noted that the application of this general principle must of necessity depend on the pleadings of the parties. In the instant case, parties are ad idem that Claimant was paid the sum of N60,000 for services rendered. The law is settled that facts admitted needs no further proof. See the following cases; Akinnawo v. Ayodele  LPELR-20318(CA)1@51, Paras C-C and; Jolasun v. Bamgboye LPELR-1624(SC)1@26, Para A. However, the point of disagreement is whether or not Claimant was employed as Trainee Engineer on full terms basis as the defendants are contending that Claimant was employed on freelance basis for which no employment letter is required and that there was no existing work agreement as to time and manner of resumption between parties and also that Claimant was a an unskilled handy errand man whose services cannot be readily assessed or evaluated and also that the sum of N60,000 paid Claimant was not salary but payment for utility services rendered and which sum was paid on compassionate ground.
28. It is interesting to note that the framework of labour jurisprudence in Nigeria as contained in the Labour Act mandates an employer notwithstanding that contract of employment may be oral to give its worker written terms of employment. Workers whose employers deliberately failed to give letters of employment were never left unprotected by the law. They were jealously guarded to the extent that their employers who refused to follow the dictates of the law may, when exposed, face the wrath of the law, and become liable on conviction to a fine. Employers are mandated by Section 7 of the Labour Act to give to their workers, written statements of particulars of the terms and conditions of their employment not later than three months after the beginning of their period of employment. Section 7 provides thus: “7(1) Not later than three months after the beginning of a worker's period of employment with an employer, the employer shall give to the worker a written statement specifying-
(a) The name of the employer or group of employers, and where appropriate, of the undertaking by which the worker is employed;
(b) The name and address of the worker and the place and date of his engagement;
(c) The nature of the employment;
(d) If the contract is for a fixed term, the date when the contract expires; (e) The appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to Section 11 of this Act; (f) The rates of wages and method of calculation thereof and the manner and periodicity of payment of wages; (g) Any terms and conditions relating to-
i. hours of work, or
ii. holidays and holiday pay, or
iii. incapability for work due to sickness or injury, including any provisions for sick pay; and
(h) Any special conditions of the contract".
The above provision of the Labour Act as regards an employer giving written statement of the terms of contract to its worker is mandatory as the operative word therein is ‘shall’. Therefore parties’ consent or acquiescence for failure to object or nullify its effect. It is worthy of note that by Section 7 (6) of the Labour Act the stipulation for written statements to be given does not apply to workers who, already, were given such letters of employment stating the terms and conditions of their employment by their employers. As reasoned supra, Claimant qualifies as a worker under the Labour Act even if in fact he was employed on freelance basis as contended by the defendants. In the instant case, Claimant is still under suspension which means that he is still in employment. From the period of Claimant’s resumption till today is clearly more than the three month benchmark in the Labour Act. The defendant which is under compulsion as prescribed by Section 7 of the Labour Act, to issue Claimant with a letter of employment embodying the terms and conditions of his employment, and, who equally defaulted in so doing, had averred that the alleged engagement of the Claimant by the defendant was for freelance contract of service which requires no letter of employment. See paragraph 3 of the joint statement of defence. The defendant however have not placed before this Court the labour standard or practice that states that contrary to Section 7 of the Labour Act that where an person is employed he would not be given letter of employment if on freelance basis.
29. The point needs to be made at this point, that, it was not the fault of the Claimant that the defendant failed in its obligation as an employer of service to give him a letter of employment stating his terms and condition of employment. The law is now settled that any employer who fails to give his employee a written statement of the terms and conditions of his employment about three months after the beginning of his employment is estopped from relying on the failure of the worker or his said employee to tender in evidence the said terms and conditions of his employment. See the case of Nwakhoba v. Dumez (Nig) Ltd 3 NWLR (Pt 861)461@484 where it was held that it would not be proper for the Respondent, the employer now, to contend that the Plaintiffs/Appellants failed to produce in evidence the NJIC conditions of service under which they claimed, when, the evidence in Court established that it was the Defendant/Respondent who failed in its statutory obligation to provide any of the Plaintiffs workers with conditions of service as provided for in Section 7 (1) of the Labour Act. The Court held further that, the Defendant contravened the provisions of Section 7 (1) of the Labour Act and as such shall not be permitted in law to profit from its own wrong doing.
30. In the instant case, the defendant who failed in its obligation to provide Claimant with the written terms of his employment would be bound by the oral evidence of Claimant that he was employed as Trainee Engineer and was paid as such with a monthly salary of
N60,000. More so, where the defendants opted not to exercise their right to cross examine as stated earlier in this case. The effect of failure to cross examine a witness on a particular matter is a tacit acceptance of the truth of the evidence of the witness. See the following cases; Gambo v. Isa & Anor LPELR-45984(CA)1@18-19, Para E and; Gaji v. Paye  8 NWLR (Pt 823) 583. Worthy of note is also the fact that the defendant admitted receiving the letter of Claimant’s solicitor herein as Exhibit B2 wherein Claimant was stated to have been employed as Graduate trainee. The defendant who would want this Court to believe that Claimant was not employed as a trainee did not see the need to contend the facts in the letter Exhibit B2 after its receipt. It is the view of this Court that if the facts stated in the said letter were not true, the defendant would have responded and set the record straight. In the case of Alh. Garba Abubakar Bagobiri v. Unity Bank Plc  LPELR- 41161 (CA) the Court held that it is trite law that where a party fails to respond to a business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter. In the case of Trade Bank Plc v. Chanmi  13 NWLR (Pt. 836)158@ 537 the Court of Appeal adopted the position expressed in the English case of Wiedemaun v. Walpole  2 QB that before a refusal or failure to reply a business letter can be the basis for an inference of admission, four (4) conditions must be satisfied, which are: (i) It must be a business communication; (ii) It must be written in the ordinary course of business; (iii) Written by a business party to another, and; (iv) Must contain an allegation or imputation of a promise or an agreement by the addressee to do or perform a certain act or obligation, thus necessitating a reply or response. Exhibit B2 no doubt qualifies as business letter which can be the basis of an inference. In the instant case failure of the Defendant to reply to letter written by the Claimant through his solicitor demanding for an apology and retraction of the alleged derogatory statement constituted an admission of its content and lent credence to the Claimant's side of the case.
31. I am not unmindful of the position of learned counsel for the defendant in the final written address on behalf of the defendant that the evidence put forward by the defendants was never controverted or challenged by the Claimant as Claimant’s counsel failed to cross examine the DW. I agree just as stated supra that failure of a party to cross examine the witness of the other party is a tacit acceptance of the testimony. See the case of Gambo v. Isa & Anor, supra. Thus, ordinarily, the failure of the Claimant to cross examine the DW would have meant that Claimant accepts and admits that he was not employed as a trainee Engineer and the sum of N60,000 paid to him was not monthly salary as the DW has alleged in his testimony. However, it should be borne in mind that it is not the Claimant that has the statutory obligation in this case. It is the defendant that has the statutory obligation to give him written terms of his employment. In the case of CIL Risk & Asset Mgt Ltd v. Ekiti State Govt 12 NWLR (Pt 1738)203@264, Paras D-E, the apex Court held that it is the duty of this Court and all other Courts to enforce the mandatory provisions of a statute and as such the Court is duty-bound to give effect to a legislation. Therefore, parties cannot by consent or acquiescence for failure to object, nullify the effect of a statute. Following this decision of the Supreme Court, it is thus clear that even if Claimant has failed to cross examine DW on his testimony as regard the status of the relationship between parties which would have ordinarily meant acquiescence, the provision of Section 7 of the Labour Act which imposes a legal obligation on the defendant to give Claimant a written terms of his employment must be given effect. Thus, the defendant would not be allowed to benefit from its own wrongdoing by maintaining that Claimant was not employed as a Trainee Engineer and was not paid monthly salary of N60,000 but the said money was paid on compassionate ground as alleged in the pleadings of the defendants. The Court in the case of Mobil Producing Nig (Unlt) & Anor v. Udo LPELR-8440(CA)1@71-72, Para A while considering a similar situation held inter alia thus: “I, therefore, hold that, as a result of the 1st Appellant's failure to issue to the Respondent the mandatory written statement of the term and conditions of his employment, the 1st Appellant cannot be allowed in law to benefit from the consequences of the failure by the Respondent to tender such document in Court. The tendency is that the 1st Appellant shall be bound by any other credible evidence produced by the Respondent proving the existence of his assertions. Therefore, the oral evidence proffered by the Respondent stating how he was employed in September 1991 and the corroborative evidence of P.W. 2, that the Respondent had worked for a long time with the 1st Appellant before he was sent to the Police Training School suffice. Furthermore, the Respondent's evidence as to the sums he was paid regarding his remunerations, i.e., special damages, coupled with the documentary evidence of the same as were clearly stated in Exhibit J, the pay slip issued to him by the 1st Appellant, are to my mind, insurmountable by mere denials of the 1st Appellant, who, obviously contravened Section 7(1) of the Labour Act 1974 by its failure to give to the Respondent a written statement of his terms and conditions of employment. Certainly, the 1st Appellant cannot be permitted to benefit from its own wrong-doing.” Following the above decision, the defendant who obviously contravened the provision of Section 7 of the Labour Act and failed to cross examine Claimant (who is not the one with the statutory obligation) are bound by the uncontroverted or unchallenged testimony of the Claimant as regards the status of the employment and other terms including monthly salary. Thus, the defendant is bound by Claimant’s side of the story that he was employee of the defendant who was employed as Trainee Engineer and was paid monthly salary of N60,000. I need to equally point out here that an employer cannot suspend a non employee, the defendant in this case suspended indefinitely the claimant vide a letter of indefinite suspension on its letter head paper, and at paragraph 2 thereof, it stated that claimant was suspended by the management for his insubordination and rebellious attitude towards his Superiors and management decisions. I find it germane to state that if the claimant is never an employee of the defendant, he wouldn’t have been suspended because an employer cannot suspend a non-employee. The defendant’s allegation that claimant’s alleged act of insubordination and rebellion was purportedly against his Superiors and Management is a clear indication that the defendant engaged the claimant in its employment and that the claimant did in fact, worked for it. In view of all the above indices and reasoning, I find that Claimant was an employee of the defendant. Hence, question three is resolved in favour of Claimant.
32. Claimant is challenging his indefinite suspension on the ground that the letter of indefinite suspension was unwarranted and that he was not given an opportunity to be heard before the suspension in breach of his right to fair hearing. The defendant in response vide paragraphs 6-8 of the joint statement of defence that the Claimant was on several instances warned for misdeeds which persisted and became a source of concern to all and he was issued a letter of indefinite suspension after several request and instruction to him to cease coming to the office business premises of the defendant in order to checkmate any security breaches. As reasoned supra, I have found that Claimant was an employee of the defendant for obvious reasons given above. The point must be made that it is the right of an employer to suspend an employee when necessary whether or not there is a regulation/ or term of contract on suspension. See the case of Miaphen v. UNIJOS Consultancy Ltd  LPELR-21904(CA)1@30, Para C and Odesanmi v. FHA LPELR-11599(CA)1@20,Para B. It is trite that suspension cannot be questioned on the ground that it could not be done unless the employee is given notice of the allegation or charge against him and afforded opportunity to defend himself. In essence, the rule of natural justice do not apply in cases of suspension so far the suspension is not vindictive. In fact, the Courts have held that suspension cannot amount to breach of employee’s fundamental rights as it has no bearing with issues of fundamental right under the Constitution. See the cases of Ayewa v. University of Jos 7NWLR (Pt. 923)87 and; Yussuf v. VON Ltd 7NWLR (Pt 463)746. In the case of Ayewa v. University of Jos, supra at page 144, Uwaifo, J.S.C(Blessed Memory). in his contribution while agreeing with the lead judgment delivered by Belgore, J.S.C (now Retired) stated thus: “The main issue in this matter is whether a servant who is suspended by his master so as to investigate allegations of impropriety leveled against him can have a recourse to the fundamental rights provision to prevent that suspension from operating. The lower Court has decided that such a scenario is not appropriate for asserting breach of fundamental rights. I endorse that view. This is a matter of master and servant. The law is that a master can suspend his servant when necessary and there can be no issue of breach of fundamental rights.” (Emphasis mine). In the same vein, the Court of Appeal per Muntaka-Coomasie JCA(later JSC) in the case of Akinyanju v. UNILORIN & Ors 2004]LPELR-6054(CA)1@33-36, Para C while relying on the above case of Ayewa v. University of Jos, supra held inter alia thus: “Suspension" only means to defer, lay aside, or hold in abeyance. It also means to half midway but certainly not to bring to an end or terminate. The University has authority to discipline any member of the administrative or academic body. Suspension of the appellant pending investigation can never amount to a breach of his fair hearing. The act of suspension in this case is an administrative act intended to ensure good and stable administration of the University. I think in the instant case, the Vice-Chancellor of the University of Ilorin acted within his powers when he suspended the appellant. In a recent case, the Supreme Court in line with their decision in Ayewa v. University of Jos (supra) held that a student in law can be lawfully suspended pending investigation. Though the case in hand concerns a University Professor, the recent decision is of tremendous assistance in arriving at this Court's decision one way or the other. See the case of Esiaga v. University of Calabar (2004) 7 NWLR (Pt. 872) 366 at pp. 387,390.” See also Longe v. First Bank PLC  6 NWLR (PT.1189) 1SC. In view of the abundant judicial authorities, I am of the view that failure of the defendant to give Claimant an opportunity to be heard before his suspension is not a breach of his fundamental right and such suspension cannot be questioned on the ground that Claimant was not afforded fair hearing before the said suspension. Whether or not the defendant can suspend the claimant indefinitely is another kettle of fish, which is not the grouse of the claimant herein. Accordingly, reliefs ‘a’ and ‘b’ in the General Form of Complaint are refused.
33. Claimant vide relief ‘c’ seeks an order of this Court directing the Defendant to pay to the Claimant forthwith all his entitlements and salaries from the date of his alleged indefinite suspension till the termination of this case. Thus, Claimant is claiming for salaries from the period of suspension till the final determination of this case. It must however be noted that whether suspension will be with pay or without pay depends on the terms imposed by contract between parties. In the English cases of Marshall v. Midland Electric 1All ER 653 and Hanley v. Pease & Partners Ltd 1KB 698, it was held that an employer cannot suspend without pay where there is no express or contractual right to do so. In Nigeria, the Courts have also shared similar view that ordinarily suspension of an employee does not deprive him of his benefits unless it is expressly stated to be so. In the case of Bamisile v. NJC & Ors LPELR-8381(SC)1@43-44, Para C, the Court per Kekere-Ekun JCA (now JSC) held that suspension of an employee from work only means the suspension of the employee from performance of ordinary duties assigned to him by virtue of his office and that Exhibit KB3 which is the letter of suspension did not impose any terms of the suspension either on half pay or without pay. As such the appellant is entitled to his salaries, emoluments, fringe benefits and other perquisites of the office. See also the case of Foluso v. Enterprise Bank Ltd  LPELR-48030(CA)1@35-39, Para D. The implied right of the defendant to suspend does not give it the right to go outside the terms of the suspension as contained in the letter of suspension. It is trite that document speak for itself and the Court cannot infer an intention different from the word used. See the cases of Asuquo &Anor v. Omole & Anor  LPELR-47867 (CA)1@41, Para A; Ikemefuna &Ors v. Ilondior& Ors  LPELR- 44840 (CA)1@18, Para D and; Ogbonna v. AG Imo State  LPELR-2287(SC)1 @60, Para E. Exhibit B1 does not state that suspension would be without pay and as such the defendants cannot infer a term that is not present to the suspension.
34. I am not unmindful of the fact that parties in this case have not officially severed their relationship although Claimant is asking that he be paid till the final determination of this case. It is clear that claimant is treating the employment relationship as having been severed at the termination of this case. In fact, from the facts and circumstances of this case, it is obvious the relationship between parties has broken down irretrievably. It is equally abundantly clear that the defendant no longer require the services of the Claimant. In the case of Ilodibia v. Nigeria Cement Co Ltd  LPELR-1494(SC)1@18-20, Para C, the Supreme Court affirmed the decision of the trial Court that the indefinite suspension of the claimant amounted to constructive dismissal. See also the case of CBN & Anor v. Aribo  LPELR-47932(SC). The Courts have come to accept the doctrine of constructive termination/dismissal which is occasioned by the acts of the employer or employee. It is in the light of the above case law authorities that I find that the employment contract between parties has been constructively terminated with effect from the date of this judgment. Having found so, I have earlier stated that Claimant is entitled to be paid his salaries during the period of the indefinite suspension. I have also earlier held in this judgment that the defendant for the reasons given earlier are bound by the oral evidence of Claimant that he was employed as Trainee Engineer on a monthly salary of N60,000. It is in the light of this that I find that Claimant is entitled to be paid his monthly salary of N60,000 from March, 2021 till the date of this judgment, which is today the 21st of October 2022; which is salary for the total of 20 months. Thus, N60,000 a month multiply by 20 months as at today will amount to N1,200,000.00. Accordingly, claimant is entitled to the sum of N1,200,000,00 as salary from March 2021 till date. Relief c succeeds.
35. Claimant vide relief ‘d’ seeks for general damages for the unlawful termination. In addressing this relief, let me start by saying there was nowhere in the pleadings or reliefs of the Claimant that unlawful termination was made an issue to warrant Claimant claiming damages for unlawful termination. What is the bane of the dispute in this case is the indefinite suspension of the Claimant and for which he sought a declaration in relief ‘a’ to declare same unlawful and which relief was refused for obvious reasons given earlier in this judgment. This Court has refused to declare the said suspension illegal or unlawful. To my mind even if the said suspension was declared unlawful or illegal, Claimant going by the facts and circumstances of this case will still not be able to succeed on this leg of general damages. I will proceed to explain why. This Court has in the preceding reliefs ‘c’ granted claimant’s claims to his arrears of salaries, it will be unconscionable to still award him general damages for same act. This view was equally expressed in the case of in the case of Mobil Producing Nig. Unlt v. Udo,supra the Court per Abadua JCA thus; “On the award of the N2 million general damages, the Appellants' Counsel argued that it must fail for being gratuitous as the Respondent made no claim for such relief… Furthermore, this is a case bordering on master and servant relationship whereby the Respondent has been suspended since 2001 without pay. The trial Court rightly awarded the Respondent his salary and allowances for the period of suspension under the head of special damages. The law is, whereas the employee can recover his remuneration within the period of suspension, he cannot claim in addition to the sum due, general damages…He is only entitled to what he would have earned throughout the period of suspension which was never authorized by the conditions of his employment. ...The law is that where an employee is not paid for a period of employment in respect of which he is entitled by the contract to be paid a fixed amount, his claim is not one for damages but a debt, namely, payment for an agreed sum, since he is entitled to be paid according to the agreed rate. The employee cannot claim in addition to the sum due, damages for delay in paying the salary. Also, a Plaintiff who has been adequately compensated under one head of damages cannot claim damages under another head in respect of the same claim. It is trite law that the award of general damages is improper when the quantum of loss is ascertainable as it will amount to double damages or double compensation…” In fact, in my humble view, granting an award of general damages after the claimant has been ordered to be paid salaries from the period of his indefinite suspension till the date of this judgment will be nothing more than double compensation which the Court has been enjoined to refrain from. See; UBA Plc v. Gostar Investment Co Ltd LPELR-44886(CA)1@86, Para A and Zenith Plastics Industry Ltd v. Samotech Ltd LPELR-8260(CA)1@34, Para A. In view of the above, I find that relief ‘d’ fails.
36. Claimant vide relief ‘e’ is asking for the sum of N200,000 as the cost of action. In the case of Cappa and Dalberto (Nig) Plc v. NDIC 9 NWLR (Pt. 1780)1@ 14, Paras G-H, the apex Court held that a successful party is entitled to cost which he should not be denied except where he misconducts himself. See also the case of Saeby v. Olaogun  10-12 SC 45@59. In fact, the correct approach as regard cost of action is that a Court is empowered to grant same once empowered by its Rules. The Rules of this Court, particularly Order 55 Rules 1,2,3,4 and 5 empowers the Court to grant costs of action at its own discretion. The discretionary power of the Court is to be exercised judicially and judiciously. In view of the fact that Claimant has succeeded in most part of his claim. The sum claimed is reasonably fair considering the number of sittings attended by Claimant’s counsel and process filed. It is in the light of the above that I award claimant the sum of N200,000 as cost of action.
37. For the avoidance of doubt and for the reasons earlier given, I declare and order as follows
1. Reliefs ‘a’ and ‘b’ fail
2. Claimant is entitled to be paid his salary from the month of March, 2021 to the date of this judgment, which is the sum of N1,200,000.00 (One Million, Two Hundred Thousand Naira) Only.
3. Claimant is entitled to cost of N200,000
4. This judgment is to be complied with within 30 days failure of which it shall attract 10% interest.
Judgment is accordingly entered.
Hon Justice O.O. Oyewumi