IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: October 15, 2020 Suit No: NICN/PHC/27/2013
Between:
Kenneth Ogiriki ------------------------ Claimant
And
ScacDelmasVieljeux (Nigeria) Ltd. ------------------------ Defendant
Representation:
A.Nwokolufor the Claimant.
Patrick Alex Briggs with C.S. Peter (Miss) for the Defendant.
COURT’S JUDGMENT
1. This case was originally filed before the High Court of Rivers State with Suit No: PHC/808/96 even though the initiating Writ found at page 540 of the recordwas filed on February 1, 2001. This case was eventually transferred to and received by thisCourt on March 25, 2013; see page 660 of the record. The case had gone to the Court of Appeal and came back to the Court for conclusion. By his second further Amended Statement of Facts at pages 858 of the record filed on April 3, 2019, the claimant is seeking for the following reliefs against the defendant:
i. A Declaration that the failure, refusal and/or neglect to recall and reinstate the Claimant to his proper position and/or status by the Defendant since the judgment of the Criminal Appeal Court in PHC/10CA/93; Kenneth Ogirikiv. Commissioner of Police was communicated to the Defendant through letter No: OK/SEK/418/95 is an infringement of the Claimant’s Constitutional right and therefore unlawful, null and void and of no effect.
ii. A Declaration that the Claimant is still in the employment of the Defendant, his Appeal to the High Court having succeeded during the period of his suspension pending the outcome of investigations.
iii. A Declaration that the Defendant’s continued suspension of the Claimant without pay after the Appeal Panel had returned a Verdict of Not Guilty, discharge and acquittal in favour of the Claimant from the offence of stealing for which he was suspended from work is unlawful, illegal, void and contrary to the Defendant’s staff conditions of service.
iv. The sum of N110,670,744.38, being general and special damages, to wit, the Claimant’s accumulated salaries, allowances and Bonuses from December 1987, when he was suspended from work without pay, to December 2012, when he will be due for retirement, as well as his gratuity and or terminal benefits payable in December 2012 on his retirement, the Claimant being ordinarily on suspension as per the Defendant’s letter of 16/12/87.
Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendant entered appearance through its counsel and filed its Statement of Defence
2. THE CLAIMANT’S CASE AS PLEADED
The case of the Claimant from his pleadings is that on December 2, 1987he was suspended without pay for an alleged offence of stealing the sum of N11,607.82. He avers that sometime in November 1987, he was asked to stand in for one Mr. Godwin B. Doba a cashier with the defendant, who was granted casual leave. Unfortunately, there was no proper handover made to ascertain the cash in the Company’s save box. The claimant went on that he was later charged and convicted at the Magistrate Court for the alleged offence but a verdict of not liable was entered on appeal at the High Court of Rivers State in Criminal Appeal No. PHC/10CA/93: Kenneth Ogiriki v. COP dated November 15, 1995. After the judgment of the High Court in favour of the Claimant, he wrote several letters through his Solicitors to the Defendant, informing them of the outcome of the case and applied to be reinstated. Regrettably, the Defendant failed, refused and or neglected to respond or comply with the repeated demands.
3. THE DEFENDANT’S CASE AS PLEADED
The Defendant’s case on its pleadings is that on December 2, 1987the claimant was assigned to cover Mr. Doba’s duties for two (2) days when Mr. Doba was proceeding on casual leave. Upon resumption of duties by Mr. Doba, it was discovered that the Claimant had recorded a shortage of N11,607.82(Eleven Thousand, Six Hundred and Seven Naira, Eighty-Two kobo) without any lawful justification. The defendant avers further that the Claimant was given an opportunity to cross-check the contents of the safe before he temporarily took over the duties of Mr. Doba as cashier. The defendant went on that it suspended the Claimant, pending the conclusion of its investigations; which eventually resulted in the claimant’s conviction at the Magistrate court but acquitted on appeal at the High Court.
4. The defendant continued that when the company was served with the notice of the High Court’s judgment, it initiated discussions with the Claimant as a mark of respect for the judgment of the Court. The Defendant was still discussing the modalities of its current relationship with the Claimant, when it was served with the originating processes of this suit. The company, thereafter; terminated the services of the Claimant, who was merely an unconfirmed staffon ground that his services were no longer required.
At the trial, the claimant gave evidence as CW.1 while one Ophelia Umunnai testified for the defendant as DW.1. Thereafter, parties filed their final written addresses as directed by the Court and counsel to both parties adopted their addresses before the Court.
5. THE DEFENDANT’S WRITTEN ARGUEMENTS
In the defendant’s Final Written Address, its counsel formulated these issues for the determination of this Court:
i. What is the Legal consequence of the Claimant’s suspension and subsequent termination from office?
ii. What is the legal consequence of the “Not Guilty” verdict on the Defendant after the Appeal panel had returned same on the Claimant.
iii. What is the legal consequence of the “No Work No Pay Rule” on the Claimant’s case?
iv. Whether in an employee against employer action for wrongful dismissal as in the present case, the Honourable Court can take into account injured feelings or loss of prospects.
v. Whether the Claimant’s employment gives his contract of employment a statutory flavour by reason of the provisions of the Companies and Allied Matters Act, 1990.
6. Arguing issue one, counsel submitted that the Claimant has failed to discharge the burden of proof expected of him in regard to his case. In one of the reliefs, the claimant is seeking for a declaration that the Defendant’s refusal, failure and or neglect to recall him (Claimant) to his proper position and or status since the judgment of the Criminal Appeal Court in PHC/10CA/93 in Kenneth Ogirikiv. COP (Exhibit C3) was communicated to the Defendant through letter NO. OK/SEK/418/95 (Exhibit C5) is an infringement of the Claimant’s Constitutional right; therefore, it is unlawful, null and void and of no effect.
Counsel submitted that the rights, duties, and obligations in employer/employee relationship are governed by the terms of the contract of employment existing between them. He continued that the defendant gave evidence that the Claimant was ‘unconfirmed staff’ and so, the claimant was bound to prove otherwise by providing his letter of employment, which was never placed before the court by the claimant in the case.
7. However, counsel submitted that Clause 30 (C) of Exhibit C6 empowers the defendant to suspend the claimant without pay where an employee is suspected of having committed a serious offence. He went on that an employee having been pronounced not guilty of the offence of stealing by a competent court of record was entitled to the payment of wages owed him during his suspension and not salaries, allowances, benefits and other entitlements after his employment was terminated; citing Yusuf v. Union Bank of Nig. Ltd [1996] 6 NWLR (Pt. 457) Page 632 at pages 214-215.
8. Counsel continued that the Defendant adequately conveyed the charge against the claimant to him; allowed the court process to come to an end; afforded the Claimant a place at the table to negotiate with it; terminated his contract after his services were no longer required and even served him a letter to that effect; which he refused to sign an acknowledgement for. Counsel maintained that the law will not force a willing employee on an unwilling employer, citing Texaco Nigeria Plc. v. Alfred G. AdegbileKehinde[2001] 6NWLR PART 708 page 224 at 228-229; Olarewajuv. Afribank (Nig.) Plc. [2001] 13 NWLR (Pt. 731)page 691 and also referred the court to the DW.1’s uncontroverted evidence as seen in her Witness Statement on Oath, paragraph 23; Anakism v. U.B.N. Ltd.[1994]1 NWLR (Pt. 322) 557 at 569-570. That the Claimant’s termination was not unlawful and his failure to produce his employment letter or letters of promotion must remain fatal to his case.
9. Arguing issue two on the legal consequence of the “NOT GUILTY” verdict, counsel submitted that the Defendant’s suspension of the Claimant from office was lawful as it was in accordance with Clause 30 (C) of Exhibit C6 and with the Claimant is still being suspended, his services with the Defendant was later terminated. Counsel argued that the choice of reinstating him is one available only to the Defendant; citing Texaco (Nig.) Plc.v.Kehinde[2001] 6 NWLR (Pt. 708) 224 at 242- Paragraph G-H ratio 8.
10. Counsel submitted that the Claimant is entitled to the sum of N22, 844.25k only; being his total wages for the period of his suspension, to wit, 2nd December, 1987 to the time of filling the present action in 1996 which was calculated at the rate of N2, 709.00 per annum which was the Claimant’s basic salary at the time of his suspension. That there was no basis upon which the Claimant could have been assessed for any increment or entitlement during the period of his suspension. He submitted that Exhibits C7- C14 goes to no issue and urgedthe Court not to attach any weight to the said Exhibits and that the Certified True Copy of the Judgment of the High Court on Criminal Appeal No: PHC/10CA/93 between Kenneth Ogirikiv. Commissioner of Police (ExhibitC.3) was clearly silent on the issue of indefinite suspension of the Claimant.
Furthermore, counsel contended that the employer was unwilling to continue with the services of the Claimant and terminated his employment. Hence, the employment had come to a definite end. His employment was determined immediately the Claimant filed the suit, not as a retaliatory action against him, but simply because his services were no longer required.
11. Arguing issue three on the legal consequence of the “No Work No Pay” Rule, counsel submitted that a servant whose contract of employment has been unlawfully terminated cannot claim his wages for services he never rendered. He went on that assuming without conceding that the defendant is in breach of contract in terminating the Claimant’s employment, a servant who has been unlawfully dismissed cannot claim his wages for services he never rendered, citing Umoh v. I.T.G.C. [2001] 4 NWLR (Pt. 703) P. 280 @ 285; Texaco (Nig.) Plc.v. Kehinde[2001] 6 NWLR (Pt. 708) p. 224 @ 1228 ratio 8. Counsel again submitted that the Claimant is not entitled to wages from the Defendant for the period he did not work for the Defendant.
12. Arguing issue four of whether in an action for wrongful dismissal the Court can take into account injured feelings or loss of prospects of the claimant; counsel answered this in the negative. He continued that the claimant’s claims for Christmas Bonus, annual traveling allowance, accrued annual leave to be committed to cash, medical allowance and long service award are frivolous, unfounded and vexatious claims; aimed at arm twisting the court into granting punitive and speculative damages against the defendant. He referred the court to the cases of Strabag Construction Nig. Ltd. v. Adeyefa [2001] 15 NWLR (Pt. 735) 1 at 26.He further submitted that it is before the court that the Claimant in this case was given Notice of his termination but refused to sign it and assuming but not conceding that there was no proper notice to terminate, the Claimant can at best regard the termination as wrongly repudiation, treat the contract as wrongfully terminated and claim damages which shall only be nominal damages, since in actual fact the Claimant receiving the Notice cannot be said to have suffered any serious loss merely on account of the informality, citing Union Beverages Ltd. v. M. A. Owolabi[1988] 1 NWLR (Pt. 28) 128 at 129 & 130 cited with approval inOgunniyi’s Labour & Employment Law in Perspective, pg. 181.
13. Arguing issue five of whether the Claimant’s employment has statutory flavour under the Companies and Allied Matters Act, 1990; counsel submitted that the claimant failed to tender in evidence before the Court, his employment/ appointment letter and that this failure is fatal to the Claimant’s case because that is the only document that would have assisted the court in appreciating the terms of employment of the claimant with the Defendant. He referred the court to the case of GodfreyIsievwore v. NEPA [2004] 1 NLLR (Pt. 1) 99 at 10.Counsel finally urged the court to find in the Defendant’s favour by dismissing this suit for being frivolous, vexatious and without merit.
14. CLAIMANT’S WRITTEN ARGUMENTS
In his final written address for the claimant, his counsel formulated the following issues for determination of the Court:
i. Whether the Claimant’s employment was not subsisting till his retirement, his employment not having been terminated by a valid notice or letter of termination by the Defendant, thus entitled to the relief sought?
ii. Whether the provision of ‘‘suspension without pay’’ as contained in Clause 30 (c) of Exhibit C.6 was applicable in Claimant’s case after the verdict of “not guilty” was returned in his favour by the High Court of Rivers State in Criminal Appeal No: PHC/10CA/93?
iii. Whether the Statement on oath of DW1 which was not made before a Commissioner for Oaths or person duly authorized to take Affidavit is admissible?
15. Arguing issue one whether the Claimant’s employment was not subsisting till his retirement his employment not having been terminated,the claimant’s counsel submitted that the suspension of an employee from work on account of alleged misconduct does not stop his employment from running, except the employment is formally terminated by the employer; citing Akinyajuv. University of Ilorin [2005] 7 NWLR (Pt. 923) at page 120; SPDC v. Emejuru [2007] 3 NWLR (Pt. 1027) 347. He went on that in the instant case, the Claimant’s suspension without pay continued even after the Appeal Panel of the High Court of Rivers State had returned a verdict of not guilty in his favour and set aside the judgment of the lower (Magistrate) court. He continued that despite the decision of the Appeal Panel, the Defendant did not only refuse to lift the suspension of the Claimant, it also failed to pay him his salaries and other entitlements even though it did not formally terminate his employment until the Claimant attained the retirement age of 60 years.
16. In addition, counsel argued that contrary to the submission of the learned Counsel for the Defendant at page 3 of his address to the effect that the Claimant’s suspension without pay was in line with Clause 30 (c) of Exhibit C6; he maintained that Exhibit C.6 does not provide for indefinite suspension (without pay) of employee suspected of having committed an offence, but that the Exhibit only provides for suspension without pay pending the outcome of the defendant’s investigation. To counsel, the judgment of the Appeal Panel of the High Court of Rivers State on the allegationagainst the claimant became the outcome of (judicial) investigation in respect of the said alleged misconduct as the reason for which he was suspended by the defendant. It is the counsel’sposition that the Defendant cannot continue to rely on the provisions of Clause 30 (c) of Exhibit C.6 for the indefinite suspension of the claimant after his discharge and acquittal by the High Court of Rivers State.More so, that his employment was not terminated before the outcome of that investigation/judgment.
17. To the claimant’s counsel, since the Claimant’s employment was not terminated, the employment subsisted during the period of his suspension till he attained retirement age and thatthe claimant is entitled to payment of his accumulated salaries and other entitlements which were not paid to him during his suspension together with his gratuity or retirement benefit from the Defendant. Therefore, he argued that the case ofTexaco Nigeria Plc.v. Alfred G. AdegbiteKehinde [2001] 6 NWLR (Pt. 708) 228-229 and Olarewajuv. Afribank Nig. Plc. [2001] 13 NWLR (Pt. 731) 691 cited at page 5 of the Defendant’s address are inapplicable in the circumstances of the case at hand.
18. Furthermore, counsel stated that while it is conceded that the Defendant had the right to terminate the Claimant’s employment even without giving any reason, the Defendant has the duty to prove that the said employment was formally terminated by adducing credible evidence to that effect. He contended that the Defendant ought to have tendered a copy of the purported letter of termination in evidence, showing the date it was issued, the name of the officer who signed it, the date the letter was sent to the Claimant and the means through which it was sent to him; either by courier or by hand delivery among others, which the defendant failed to do in this case. He referred the court to the cases of Inua v. FBN Plc. [2016] 2 NWLR (1495) 89 at 110 paragraphs F and G;NBN Ltd. v. Opeola [1994] 1NWLR (Pt. 319) 126 and Ibrahim Ojamo [2004] 4 NWLR (Pt. 862) 89, also Section 131 of the Evidence Act 2011; Songhai Ltd. v. UBA [2004] FWLR (Pt. 187) 1244, Buhari v. INEC [2008] 19 NWLR (Pt. 1120) 246;UAC Nig. Ltd v. Saadu [2007] 6 NWLR (Pt. 1030) 368.
To counsel, the presumption of subsistence of Claimant’s employment till he attained the age of retirement ought to inure in favour of the Claimant in the absence of any evidence from the Defendant to the contrary, citing Section 167 of the Evidence Act, 2011; SPDC v. Emejuru (2007) 3NWLR (Pt. 1027) 347.
19. On failure of the Claimant to produce his letter of employment in evidence, counsel to the claimant submitted that Claimant’s action against the Defendant is not based on whether he was rightly or wrongly terminated but that he is entitled to payment of his accumulated salaries and allowances which were not paid to him during his period of suspension; his employment having not been terminated by the Defendant. The claimant is as well claiming his gratuity after he was deemed to have retired from service upon attaining the retirement age of sixty. He submitted that the Claimant’s employment subsisted till he retiredbecause his indefinite suspension from work without a valid/formaldetermination does not amount to termination of his employment, citing See Akinyaju v. University of Ilorin (supra). To counsel, the Claimant would have been required to produce his letter of employment to show in what manner his employment was wrongly terminated if his complain or action were for wrongful termination of employment, citing Okposin v. Assan [2005] 14NWLR (Pt. 945) 495;Santi v. Bagobiri [2006] All FWLR (Pt. 292) 100;Ekwealor v. Oburi [1990] 2NWLR (Pt.131) 231;UBA Ltd. v. Achoru[1990] 6 NWLR (Pt. 156) 254 andBriggs v. Harry [2016] 9 NWLR (Pt. 1516) 45 at 73 paragraphs G-H.
20. Arguing issue two of whether the provision of ‘‘suspension without pay’’ as contained in Clause 30 (c) of Exhibit C.6 was applicable to the Claimant’s case after the verdict of “not guilty” was returned in his favour by the High Court of Rivers State in Criminal Appeal No: PHC/10CA/93; counsel submitted that the suspension of the Claimant which was based on the alleged misconduct of stealing ought to have come to cessation after the pronouncement of “Not Guilty” by the High Court of Rivers State in its Appellate jurisdiction. He went on that that verdict of “not guilty” also set aside the decision of the Magistrate Court.To that extent, no more investigation into the alleged misconduct was required by the Defendant except to challenge the verdict on further appeal to the Court of Appeal, which the Defendant failed to do. Therefore, the judgment remained final and ended every issue on the matter.Hence, the defendant ought to have called off the suspension of the claimant and to have reinstatedhim to his former position.Counsel went on that the defendant ought to have paidthe claimant all his accumulated salaries and other entitlements, which accrued to him from December 2, 1987 when he was suspended to November 15, 1995 when he was held to be innocent by the appellate High Court.
21. Arguing issue three of whether the Statement on oath of DW1, which was not made before a Commissioner for Oath or person duly authorized to take Affidavit is admissible; counsel submitted that during the cross-examination of DW.1 on December 5, 2019 the witness stated categorically that she signed her written statement on oath in the office of the Counsel for the Defendant. He contended that by the provision of section 112 of the Evidence Act Cap E14, LFN;an affidavit shall not be admitted which is proved to be sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner. Counsel urged the court not to admit the evidence of DW.1 as same failed to meet the requirements of the law.
22. Counsel to the Defendant filed Reply on Point of Law
In his reply in responding to issue 1 of the claimant, particularlyin Paragraphs 4.10, 4.16, 4.17, 4.18 and 4.19, counsel to the defendantmaintains that the Claimant has a duty to prove that he was a permanent staff as the position of the defendant is that he was merely an unconfirmed staff and his failure to present his employment letter and/or confirmation letter in the regard proves it; citing Anakisan v. U.B.N. Ltd.[1994] 1 NWLR (Pt. 322) 557 at 569 – 570, Sections 131 and 132 of the Evidence Act and N.B. Ltd. V D.C. Holdings Ltd.[2004] NWLR (Pt.436)at 462. Counsel further submitted that a termination letter was served on the Claimant and that this was not successfully controverted or challenged. To counsel the Claimant cannot raise it at this point.
23. Responding to issue two;counsel maintains that court cannot force a willing employee on an unwilling employer; hence the Judgment of the High Court panel cannot be seen as an order of reinstatement. Counsel went on that the High Court Panel in its wisdom evaded submitting itself as a tool to foster such unreasonable order. Assuming without conceding that the court did make such order, this court must now decide whether or not the termination of the claimant was definitive, bearing in mind the case of Nwobosi v ACB Ltd. [1995] 6 NWLR (Pt. 404)page 658 at 586 in which it was held that “It is not necessary for the Respondent to initiate criminal prosecution before taking disciplinary measures against him by summarily dismissing him where the Appellant’s misconduct undermined the relationship of confidence which should exist between the Appellant and his employer.”
24. In reply to paragraph 5.5 of the claimant’s Final Written Address, counsel submitted that the Claimant cannot approbate and reprobate at the same time. He went on that the Claimant cannot be allowed to challenge the adopted Written Statement on Oath of DW1 in Issue III of his Final Address and then turn round in Issue II of the same address, using DW1’s adopted Written Statement on Oath to argue his case. Counsel referred the court to Suberu v. The State [2010] 8 NWLR (Pt. 1197) 586 S. C. Counsel further submitted that DW1’s written statement on oath clearly indicates before whom it was sworn, citing Ezenwav. Kshsmb [2011] 9 NWLR (Pt. 1251) 89 at 118 paragraphs B-C.
25. COURT’S DECISION
I have gone through the facts of this case as pleaded by the parties, their written arguments including their cited authorities; from all of this, I am of the considered view that the following issues need to be resolved by this Court between the parties:
i. Whether or not the written statement on oath of the defendant’s witness is valid or it is to be discountenanced.
ii. Whether or not the employment of the claimant was determined by the defendant or he was on indefinite suspension without pay until the time of his retirement in compliance with Clause 30 (c) of Exhibit C.6.
iii. Whether or not the employment of the claimant with the defendant is with statutory flavour hence, he was entitled to reinstatement after the verdict of Rivers State High Court Appellate Panel in 1995.
iv. Whether or not the claimant is entitled to his salaries and allowances from the date of his indefinite suspension without pay until the date of his retirement together with his terminal benefits/gratuity.
v. Whether or not the claimant is entitled to general damages.
26. Before resolving the merit of this case as framed, let me sort out some general issues which came up in the written arguments of the parties. Firstly, it is the defendant’s contention that after the verdict of the Rivers State High Court to the effect that the claimant was not guilty of the crime of stealing against him, and he was discharged and acquitted; the defendant was discussing with him on how to resolve the matter amicably when the claimant filed this action against the company. To the defendant, the claimant’s action puts an end to the amicable discussion. This is not the correct position of the law as discussions on amicable settlement can still continue after a case is filed in Court. For instance, section 20 of the NIC Act, 2006 enjoys this Court to promote reconciliation among parties, encourage and facilitate amicable settlement of their case even after they have settled their pleadings.
27. Secondly, even though both parties agreed that the employer can terminate the employment of its employee without any reason; it is now bad labour practice and it is now repugnant to International Best Practice and International Labour Standard for any employer to terminate the service of its employee without any reason in the present Labour Jurisprudence.
28. Thirdly, the defendant contended that “No Work No Pay” Rule applies to the claimant in the instant caseto buttress its position that the claimant is not entitled to his salaries for the period of his indefinite suspension without pay because he did not work for the defendant during the said period. This is clearly a misapplication of the Rule because this Rule applies to employees that go on strike action. Section 43(1) (a) of the Trade Disputes Act, Cap T.8 LFN 2004 states that “where any worker takes part in a strike, he shall not be entitled to any wages or other remunerations for the period of the strike ---”. In the case at hand, the claimant did not go on strike.Rather, he was forced to leave his office and not to work by the defendant; see the content of Exhibit C.2 at page 773 of the record. Therefore, I find and hold that this Rule does not apply to the claimant in this case.
29. Fourthly, it is the argument of the defendant that it is fatal to the claimant’s case for failing to exhibit his letter of employment with the defendant. In paragraph 3 of the claimant’s Second Further Amended Statement of Facts at page 858 of the record, he avers that he was employed by the defendant on January 1, 1977 and that he was placed on indefinite suspension without pay with effect from December 2, 1987. In paragraph 2 of its Further Amended Statement of Defence at page 833 of the record, the defendant admitted paragraph 3 of the claimant’s further amended Statement of Facts. In essence, the defendant has admitted that it employed the claimant with effect fromJanuary 1, 1977. It is trite that this admission suffices.Hence, it is no longer vital for the claimant to produce his letter of employment to show that he was actually employed by the defendant on the said date; I so find and hold.
30. Fifthly, it is the defendant’s contention in its Final Written Address 3rd paragraph at page 292 and in its Reply on Points of Law, 2nd paragraph at page 969of the record that the claimant’s employment was not confirmed throughout the period that he worked with the defendant.In the recent unreported judgment of this court in Suit No: NICN/IB/30/2016 between Mr. Adekunle Are v. Oyo State Finance and Investment and 2 Ors delivered on January 30, 2018 this court held thus on similar issue that: “it is the law that where an employee on probation has spent the required probationary period without termination or confirmation, the issue of confirmation of the employee is implied; see the case of Iwuji v. Federal Commissioner for Establishment [1985] 1 NSCC 580 and the case of Raji v. OAU [2014] LPELR-22088(CA). Consequently, I find and hold that the claimant’s appointment is impliedly confirmed and ratified by the conduct of the 1st defendant in this case”.
31. From the findings and holdings of this Court above, the claimant worked with the defendant from January 1, 1977 and he was suspended on December 2, 1987; which is about 11 years. In the circumstance, I find and hold that it is implied that the employment of the claimant was confirmed before his suspension. However, the issue of none confirmation of the claimant’s employment was not pleaded by the defendant; it was only raised in the final written address of the defendant’s counsel. Therefore; this argument of counsel is no moment as address of counsel, no matter how brilliant cannot take the place of pleading and evidence. See the case of E. S. Ltd. v.UmaruAdamuEnt. Ltd. [2020] 10 NWLR (Pt. 1733) S. C. 561 @ 590 paragraphs B – C.
32. Sixthly, it is the defendant’s contention that this action is on wrongful dismissal as framed by its counsel in its issue 4. This is not correct because the instant case is against the continued suspension of the Claimant without pay after the Appeal Panel had returned a Verdict of not Guilty, discharge and acquittal in favour of the claimant from the offence of stealing for which he was suspended. Therefore, all arguments of the defendant’s counsel on wrongful dismissal are off point as it has no bearing with the issues before the Court. The said arguments are accordingly discountenanced in this judgment. Now, to the merit of this case.
33. Whether the written statement on oath of the defendant’s witness is valid or it is to be discountenanced.
In his final written address for the claimant, his counsel pointed outwhile arguing his issue threethatduring cross-examination of DW.1 on December 5, 2019; the defendant’s witness stated that she signed her written statement on oath in the office of the Counsel for the Defendant. Counsel contended that by Section 112 of the Evidence Act, 2011 Cap E14, LFN; states that“an affidavit shall not be admitted which is proved to be sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner”.He urged the Court not to admit the evidence of DW1 in evidence as same failed to meet the requirements of the law.
From the content of the DW1’s evidence under cross-examination at page 29 of the proceedings’ file, DW.1 testified that she signed her written statement on oath in the office of Counsel for the Defendant. This piece of testimony is prima facie contrary to the provision of Section 112 of the Evidence Act, 2011; which stipulates that it must be signed before this Court’s Commissioner for Oaths.
34. However, at pages 837 to 839 of the record is the Written Statement on Oath of the DW.1, the defendant’s witness. It was filed on March 19, 2019; duly signed and stamped by the Commissioner for Oaths of this Court, one Uchie Isaac Titus; see in particular page 839 of the record. At that page it is indicated that the deponent swear to the Written Statement on Oath at this NICN before the said Commissioner for Oaths who then appended his signature and stampon the same date. This is the finding of the Court, which is very clear and unambiguous.
35. Section 128 (1) of the Evidence Act, 2011 provides that: “When a judgment of a court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence”. See also the case of Alphounsus A. Udo v. Government of AkwaIbom State &Ors[2012] LPELR-19727(CA). Again, in UBA Plc. V. Jargaba [2002] 2 NWLR (Pt.750) 200 CA, it was held that it is trite that where there are oral and documentary evidence, it is the documentary evidence that will be used to evaluate the oral evidence; because documentary evidence being permanent in form is more reliable. See also Ojbeide v. Osifo[2007] All FWLR (Pt.365) 548 (CA). Therefore, in line with the provision of section 128(1) of the Evidence Act and the case law in AlphounsusUdov. Government of AkwaIbom State &Ors (Supra),D.W.1 will not be allowed to give oral evidence to change where he made the said statement that is contrary to the venue where she made it as stated in her written deposition on Oath before the Court and I so hold. I further hold that the DW.1 made her written statement on oath before the NICN Commissioner for Oaths on the date in question.
36. In addition, it is my considered view that allowing the argument of the claimant to stand against the testimony of DW.1 by shorting out the defendant from being heard will promote technical justice in this case as opposed to doing substantial justice that this specialized Court stands for.See the case of Fidelity Bank Olc v. Manye [2012] All FWLR (Pt. 613) page 1412 at 1442 paragraphs A-C. Furthermore, in situations like this, section 12 (2) (b) of the National Industrial Court Act, 2006 allows the Court to depart from the provision of the Evidence Act in the interest of justice. See also the provision of Order 5 Rules 6(2) and (3) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017; which provides thus:
(2) In any proceeding pending before it, the Court may as a specialized Court—
(a) Regulate its procedure and proceedings as it thinks fit in the interest of justice and fair play.
(b) In appropriate circumstances, depart from the Evidence Act as provided in section 12 (2) (b) of the National Industrial Court Act, 2006 in the interest of justice, fairness, equity and fair-play.
(3) In any proceeding before it, the Court shall apply fair and flexible procedure and shall not allow mere technicalities to becloud doing justice to the parties based on the law, equity and fairness while also considering the facts of any matter before it.
37. Consequently, I hold that it will be against the interest of justice, fairness, equity and fair-play to reject the Statement on Oath of DW1 as doing same will promote undue adherence to technicalities as againstsubstantial justice by this court. Again, Ihold that regardless of DW.1’s evidence under cross examination against her written Statement on oath, the contradiction is cured by the provisions of section 12 (2) (b) of the National Industrial Court Act, 2006 and Order 5 Rules 6(2) and (3) of National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.Additionally, I hold that the defendant’s witness, DW.1 OphiliaUmunna properly made her written statement on oath on March 19, 2019 before the Commissioner for Oaths in this Court by virtue of the provision of section 128(1) of the Evidence Act and that the written statement on oath is proper before and rightly admitted in evidence by the Court. Accordingly, the claimant’s objection to its admissibility lacks merit and it is dismissed.
38. On what regulate the employment relationship between the claimant and the defendant before the Court.
By way of quick reminder, the defendant in this case is ScacDelmasVieljeux (Nigeria) Ltd and this shows that it is a private company. It then means that the contract of employment between the parties is a private contract otherwise known as Master and servant relationship.In such cases, this Courtwill examine the terms and conditions of service between the parties in order to determine their contractual relationship. Where parties have reduced their terms and conditions otherwise known astheir agreement into writing, then those terms and conditions must be observed. Usually, these arestated in the letter of appointment of the claimant,any service regulations connected with establishment of employer and in the provisions of any statute or decree, which relates to or regulates the service conditions of the defendant establishment.See the cases of Odiase v. Auchi Polytechnic, Auchi[2015]60 NLLR (Pt. 208)1 CA at 23-24, paraF-A;Gbedu v. Itie[2020] 3 NWLR (Pt.1710) SC 104 at 126 para F-H andAvre v. Nigeria Postal Service [2014] 46 NLLR (Pt.147) 1 at 41.
39. Inparagraph 3 of the claimant’s Second Further Amended Statement of Facts at page 858 of the record in this instant case, the claimant avers that he was employed by the defendant on January 1, 1977 and that he worked in various capacities until December 2, 1987 when he was suspended without pay. The claimant did not tender his letter of employmentbut he listed at page 770 of the record and tendered in evidence as Exhibits C.6; the Constitution of the National Joint Industrial Council for shipping, Forwarding & Clearing Agencies as the document that regulated the employment relationship between him and the defendant.See pages 778 to 791 of the record. In the circumstance, I find and hold that the rights, duties, and obligations of the claimant and the defendant in this case will be determined from the content of Exhibit C.6 before the Court.
40. Whether the employment of the claimant was determined by the defendant
In paragraph 13 of the claimant’s Second Further Amendment Statement of Facts at page 858particularly at page 863 of the record, the case of the claimant is not on termination of his appointment.Rather, it is in the main, on the failure, refusal and/or neglect of the defendant to recall and reinstate him to his proper position before his suspension afterhe was discharged and acquitted of the alleged crime of stealing for which he was suspended indefinitely by the defendant. The judgment in question isby the Criminal Appeal Court of Rivers State High Court in the case with Suit No:PHC/10CA/93 betweenKenneth Ogirikiv. Commissioner of Police. This judgment is Exhibit C.3 in this case and it is at page 774 of the record. It was delivered on Wednesday November 15, 1995.The content of this judgment was communicated to the Defendant through the claimant’s solicitor letter No: OK/SEK/418/95 dated December 15, 1995 and it is Exhibit C.5 in this case; see page 776 of the record. To the claimant, this act of the defendant is an infringement of his Constitutional right, therefore; unlawful, null and void and of no effect. The claimant maintained that despite the said judgment and the notification of same, the defendant refused to stop his indefinite suspension neither did it pay him his accumulated salaries.
41. On the other hand, the defendant avers in paragraph 11(d) of its Further Amended Statement of Defence at page 834 of the record that “the defendant shall at the trial contend that the claimant was served with a termination letter by the defendant of which the claimant refused to sign for it”. Also, in paragraphs 18 and 23 of the written statement on oath of the Defendant’s witness at pages 838 and 839 of the record, DW.1 deposed thus:
In paragraph 18 the statement on oath of the Defendant’s witness at pages 838“When the defendant got notice of this judgment of the court we started discussions with the claimant as a mark of respect for the judgment of the court. The defendant was still discussing with the claimant when it was served with processes of this suit.”
In paragraph 23 of the statement on oath of the Defendant’s witness at pages 839, DW.1 deposed that “It is not correct that the Claimant is still with the Defendant, his services are no longer with the Defendant as a matter of fact, and the decision of the Appeal Court did not say that the Defendant Company should re-instate the Claimant. The Defendant duly terminated the employment of the Claimant vide a letter- which letter the Claimant refused to sign for.”
42. With the combined averments of paragraph 11(d) of the Further Amended Statement of Defence and the depositions in paragraphs 18 and 23 ofDW.1’s written statement on oath, the argument of the defendant is that it was still discussing with the claimant on the judgment of the Rivers State HighCourt when it was served with Court’s process on this suit and so,the defendantterminated the employment of the Claimant vide a letter- which letter the Claimant refused to sign for. However, the said termination letter, which the defendant claimed to have issued to the claimant,is not before the Court. There is no evidence backing up the pleading of defendant in paragraph 11(d) of the Further Amended Statement of Defence and depositions in paragraphs 18 and 23 the Statement on Oath of the Defendant’s witness.
43. The law is that averment in pleadings is not evidence. Even if the fact was duly pleaded, it would have been deemed to be abandoned, there being no evidence led to substantiatethe averment, unless it was admitted by the opponent. SeeBrawal Shipping Nigeria Ltd v. Ometraco International Ltd.[2011] 10 NWLR (Pt.1255) 290 at page 303 paragraph E. In civil proceedings, cases are decided on balance of probabilities based on the preponderance of Evidence. The burden of adducing credible evidence to establisha case rests on the party who would fail if no evidence is adduced in proof of that fact in the pleading; see Abubakar v. INEC [2020] 12 NWLR (Pt. 1737) 37 at page 110 paragraphs A-C.
44. In the instant case, the termination of the claimant’s employment took effect from what date? When was the letter of termination of employment issued to the claimant by the defendant? Answers to these questions are very germane to this judgment and the Court is not allowed to speculate on them. In this circumstance, I hold that the defendant has the burden of proving that it terminated the employment of the claimant with effect from a specified date but the defendant failed to do this in this case. I further hold that the claimant’s employment with the defendant was not terminated during the pendency of this case neither was it determined at all by the defendant before he compulsorily retired on ground of age in December 2012.
45. Was the Indefinite Suspension of the ClaimantWithout Pay in Compliance with Clause 30 (c) of Exhibit C.6?
In paragraphs 4.1 to 4.19 of the claimant’s final written address, his counsel contended that the claimant’s suspension without pay continued even after the Appeal Panel of the High Court of Rivers State returned a verdict of not guilty in his favour, set aside the judgment of the lower (Magistrate) court and acquitted him from the alleged offence. Counsel continued that despite the said decision of the High Court, the defendant did not only refused to lift the indefinite suspension on the Claimant, it also failed to pay him his salaries and other entitlements;without formally terminating his employment until the Claimant attained the retirement age of 60 years. In his final written address, counsel to the defendant argued that Clause 30 (C) of Exhibit C6 empowers the defendant to suspend the claimant without pay where he is suspected of having committed a serious offence. The defendant even agreed that where an employee has been pronounced not guilty of the alleged offence by a competent court of record, he would be entitled to payment of wages owed him during his suspension.
46. Clause 30 (C) of Exhibit C.6, particularly at 791 provides thus:
Suspension: An employee suspected of a serious offence may be suspended from duty without any pay pending full investigation. If found guilty and dismissed; such dismissal will be with effect from the date of suspension. If found not guilty; he will be paid his full wages in respect of the period of suspension irrespective of other disciplinary action taken. In companies where more favourable condition with regard to suspension exists, the practice should continue.
The last paragraph of the claimant’s letter of suspension (Exhibit C.2) dated December 16, 1987 at pages 773 of the record states:
Meanwhile, in view of the seriousness of the alleged offence, Management hereby confirms your suspension from duty without pay effectively from 2nd December, 1987 pending the outcome of our investigation.
47. At page 774 of the record is Exhibit C3, the Judgment of the Special Appeal Cases Panel in the High Court of Rivers States Port Harcourt in which,the claimant was held not guilty, discharged and acquitted of all chargesagainst him. There is no appeal against the Court’s decision in Exhibit C3 (judgment) and so; that decision remains final in respect of the allegation of crime against the claimant. In the circumstance, I hold that the verdict of “not guilty, discharged and acquittal”in favour of the claimant in Exhibit C.3 marks the end of all investigationson the alleged misconduct of stealing against the claimant.
In addition, by the agreement in Clause 30 (C) of Exhibit C.6,since the claimant was found not guilty of the alleged stealing against him; he is entitled to be paid his full wages for the period of his indefinite suspension without pay and I so hold.
48. There is nothing in Clause 30 (C) of Exhibit C.6suggesting that claimant should remain in the employment of the defendant till the time of his retirement.Even though the defendant has power to terminate the employment of the claimant under Clause 30 (b) of Exhibit C.6 there is no evidence before the Court to show that the defendant terminated the employment of the claimant. Therefore, I hold that the defendantdid not terminate the appointment of the claimant after he was exonerated from the crime by the Rivers State High Courtand until the time of his compulsory retirement.In other words, I hold that the claimant’s employment with the defendant, which was on indefinite suspension without pay subsisted until the time of his compulsory retirement in December 2012.
49. Even thoughthe defendant is not under any obligation to reinstate the claimant into its employment after the judgment in Exhibit C.3; the defendant, had a duty to end the indefinite suspension without pay of the claimant and to pay him his full wages after that judgment.Additionally, the defendant had a duty to clearly and decisively determine the claimant’s employment with the company after that same judgment instead of allowing his employment to continue to hand in the air perpetually.Consequently, I hold that the claimant continued to be on indefinite suspension without pay in the defendant company after the conclusion of investigation on the alleged stealing of money against him in 1995; contrary to the agreement of the parties as stated in Clause 30 (C) of Exhibit C.6.
50. It is trite that an employee on suspension is deemed to still be in the employment of his employer until his employment is finally and definitely determined. In S.P.D.C. (Nig.) Ltd. v. Emehuru [2007] 5 NWLR [Pt. 1027] 347 at 376 Paragraphs C- E (CA), it was held Per Dongban - Mensem JCA (as she then was) that: "where an employee is placed on suspension, his employment is placed on hold; he lives day by day in anticipation of either being recalled or being laid off. He is not at liberty to utilize his time elsewhere or as he desires until after closing hours. ---“.Since the defendant did not determine the claimant’s employment until his retirement period in December 2012; I hold that the claimant was on indefinite suspension from December 2, 1987 until December 2012.
51. Whether the employment of the claimant with the defendant was with statutory flavour and so, entitled to reinstatement.
I have held earlier in this judgment that the employment of the claimant was a private employment otherwise termed ‘Master and Servant Relationship’. Therefore, there is no need to be-labour this issue. The claimant did not citeany statute that preserved his employment with the defendant to the Court. See the case of N.I.I.A. v. Ayanfalu [2007]: [2007] (Vol. 28) WRN 34 at 64-65 where it was held that "An employment with statutory flavour is that employment where the procedure for employment and discipline are governed by statute." See alsoImoloame v. WAEC [1992] 9 NWLR (Pt. 265) 303, 317where the Supreme Court held that an employment is with statutory flavour when its appointment and termination is governed by statutory provision. See alsoOlaniyan v. University of Lagos [2004] 15 WRN 44 andShittaBey v. Federal Civil Service Commission [1981] 1 NCLR 327: [1981] 12 NSCC 26.In the instant case, the claimant’s employment with the defendant was only covered by its terms and conditions as stated in Exhibit C.6. Although, Rivers State High Court of Justice in its Appellate jurisdiction found the claimant not guilty of any crime, dischargedand acquitted him of the alleged crime; the claimant was still not entitled to re-instatement as copiously canvassed by his counsel in this case and I so hold.
52. Whether the claimant is entitled to his salaries and allowances from the date of his indefinite suspension without pay until the date of his retirement together with his terminal benefits/gratuity.
In Clause 30 (C) of Exhibit C.6,it is part of the parties’ terms of employment that if an employee suspected of a serious offence and suspended from duty without any pay pending full investigationis found not guilty of the alleged offence, he will be paid his full wages in respect of the period of suspension, irrespective of other disciplinary action taken against him. Apart from the prosecution of the claimant for the alleged stealing of money in the Company, there is no other disciplinary action taken against him by the defendant known to Court. It is on record that the outcome of the prosecution in the competent court is that the claimant was fully absorbed of the crime as the High Court of Justice of Rivers State in its Appellate jurisdiction found him not guilty, discharged and acquitted him of the said crime. In the circumstance, I hold that by the agreement between the parties as coded in Exhibit C.6, the claimant is entitled to payment of his full wages for the period of his indefinite suspension without pay.
53. From the findings and holdings of this Court above, the claimant was suspended indefinitely with effect from December 2, 1987 and the indefinite suspension was not lifted until the claimant finally retired compulsorily on ground of age in December 2012. This means that the claimant was on indefinite suspension without pay from December 2, 1987 to December 2012. Consequently, I hold that the defendant is to pay the claimant’s full salaries to himfor the total period of his indefinite suspension without pay from December 2, 1987 to December 2012 at the current rate of the wages of his counterpart in the defendant/company at each material time of the accrual of the said salaries.
54. The claimant completely abandoned his claim for gratuity and terminal benefits against the defendant. Since this Court is not a Father Christmas, the Court will not award any terminal benefit or gratuity to the claimant in this case. The claimant’s claims for terminal benefit and gratuity are accordingly dismissed for lack of prove.
55. Whether the Claimant is Entitled to Damages as claimed.
In paragraph 13(4) of the Second Further Amended Statement of Facts filed on April 3, 2019 at page 858 of the record, the claimant’s fourth relief is for the sum of N110,670,744.38 being general and special damages to wit, his accumulated salaries, allowances and Bonuses from December 1987 when he was suspended from work without pay, to December 2012 when he was due for retirement, as well as his gratuity and terminal benefits payable in December 2012 on his retirement.
I have held above that the claimant was on indefinite suspension with effect from December 2, 1987 until he compulsorily retired in December 2012. This is because the defendant failed to determine the claimant’s employment neither did it vacate his indefinite suspension without pay on him after the conclusion of investigation on the alleged crime against him through the Judgment of Rivers State High Court of .justice delivered on November 15, 1995. I have also held above that the claimant is entitled to his full wages from December 2, 1987 to December 2012 when he retired. Consequently, I find that the said holdings above have taken care of the specific damages that the claimant is seeking for in this paragraph.
56. In respect of the general damages the claimant is seeking for, it is my firm view that the claimant has not satisfied the Court with any evidence that he is entitled to it. Additionally, in the instant case, this Court has held that the claimant is entitled to his full salaries for the whole period of his indefinite suspension without pay;it will not be equitable for the claimant to again claim general damages for the same incidence; I so find and hold.
57. On the whole, I declare, hold and order as follows:
i. I declare and hold that the written statement on oath of the defendant’s witness is valid and it is properly admitted in evidence in this case.
ii. I declare and hold that the employment of the claimant was not determined by the defendant before the time of his compulsory retirement on ground of age in December 2012.
iii. I hold that the claimant was on indefinite suspension without pay until the time of his retirement, contrary to the terms and conditions of his employment as stated in Clause 30 (c) of Exhibit C.6.
iv. I hold that the employment of the claimant with the defendant is not laced with statutory flavour and so, he was not entitled to reinstatementafter his discharge and acquittal from the alleged crime against him by Rivers State High Court of Justice in Its Appellate Panel.
v. I hold that the claimant is entitled to his salaries and allowances from the date of his indefinite suspension without pay on December 2, 1987 until December 2012 when he retired from the employment of the defendant.
vi. I hold that the claimant is not entitled to any terminal benefits/gratuity from the defendant because the claim was not proved.
vii. I hold that the claimant is not entitled to general damages from the defendant because it is not equitable to make that order for the claimant.
viii. I hereby order the defendant to pay the claimant’s full salaries and allowances for the period of his indefinite suspension without pay from December 2, 1987 to December 2012at the current rate of the wages of his counterpart in the defendant/company at each material time of the accrual of the salaries and allowances.
ix. I hereby order the defendant to pay N250,000.00 cost to the claimant.
x. I hereby order the defendant to pay the judgment debt in this case including the cost of the action to the claimant within 60 days from today.
Judgment is entered accordingly.
-------------------------------------------
Hon. Justice F. I. Kola-Olalere
Presiding Judge