IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BENIN JUDICIAL DIVISION

HOLDEN AT BENIN

BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO

 

     DATED: 20TH JANUARY, 2025                                       SUIT NO: NICN/BEN/03/2021

 

     BETWEEN

 

      MR. OFIOGUMA KESIENA                                                       ………. CLAIMANT

     

     AND

 

      LAPO MICROFINANCE BANK LIMITED                          ………… DEFENDANT

 

 

     REPRESENTATION

     Idemudia Ilueminosen, Esq. and Clement Agbonkhese, Esq. for the Claimant

     Dennis Osaretin, Esq. with Douglas Ogbankwa, Esq. and F. O. Archibong, Esq. for the           Defendant

 

JUDGMENT

 

1.     The Claimant initiated this suit against the defendant vide a complaint, statement of facts and other accompanying processes dated and filed 20th day of January, 2021, but later amended same after he obtained leave to amend his originating process on the 7th of February, 2023. The extant processes were however deemed properly filed and served on the 22nd of April, 2023, wherein the claimant is seeking the following reliefs:

 

a.     A Declaration that the indefinite suspension of the claimant by the Defendant without pay vide a letter of 29th June, 2018, is unlawful, wrongful, null and void and a violation of the Defendant’s staff Code of Conduct.

b.     An Order directing the Defendant to pay to the Claimant his salary arrears and other benefits from July, 2018 to July 2020 the period of his unlawful and wrongful suspension without pay as stated below:

                                                            i.            Thirteen month salary for 2018 and 2019 in the sum of N152,975.46 multiplied by 2 (two) amounting to the sum of N305,950.93(sic) (Three Hundred and Five Thousand, Nine Hundred and Fifty Naira, Ninety Three kobo).

                                                       ii.            Annual leave of 2019 and 2020 in the sum of N45,102,65 multiplies by 2 (two) amounting to the sum of N90,205.3(sic) (Ninety Thousand Naira, Two Hundred and Five Naira, Three kobo).

                                                      iii.            Monthly salary from July, 2018 till July, 2020 in the sum of N97,535.46 per month multiplied by 25 (Twenty-Five) months amounting to the sum of N2,438,386.5 (Two Million, Four Hundred and Thirty Eight Thousand, Three Hundred and Eight Six naira, Five kobo)(sic).

 

c.      A Declaration that the letter of withdrawal of recall letter from suspension dated 10th June, 2020 but received by the Claimant on the 19th June, 2020 is unlawful, wrongful, null and void of no effect and written in utmost bad faith.

 

d.     Declaration that the termination/disengagement of the claimant’s employment by the Defendant vide its letter of 16th July, 2020 without first being issued a query and suspension for one month in accordance with the Defendant’s Staff Code of Conduct is wrongful, unlawful, null and void.

 

e.     A Declaration that the Claimant is still in the employment of the Defendant and entitled to the rights, benefits and privileges accruable to him including but not limited to salaries attached to his employment status till date of judgment.

 

f.       An Order directing the Defendant to remit the Claimant’s monthly Pension to Crusader Sterling Pension.

 

g.     N10,000,000.00 (Ten Million Naira) as general damages.

2.     The claimant’s case is that he was employed by the defendant on the 30th day of October, 2013, and his employment was confirmed on the 21st day of October, 2015. The claimant worked in several branches of the defendant, and was a staff of Warri 4 branch at the time of the incident in this case. He averred that sometimes in 2018, the Delta State Zonal Manager of the defendant instructed that staff of the branch be placed on half salary, while salary shall henceforth be based on performance. As a result, there was a protest by staff, and the half salary was rejected on the ground that it runs contrary to their terms of engagement.

 

3.     The claimant and another staff were identified by the defendant as the arrow head of the protest, and they were accused of instigating others to reject the payment of half-salary. The claimant was issued two different queries, to which he responded, but he was subsequently placed on an indefinite suspension without pay for over 20 months, by the defendant after which he was issued a letter recalling him back to work.

 

4.     Upon resumption, the claimant demanded for payment of his salary for the months he was suspended, but the defendant offered to pay him 3 months as final settlement, which he rejected. The Claimant went on to instruct his solicitor to write and demand for his full salary for the period and subsequent to this, the defendant withdrew the letter recalling him back to work. He was later issued with a letter of disengagement\termination for insubordination and misconduct, upon which the claimant alleged that the action of the defendant is in breach of the terms of his employment, wherefore, he seeks the aforestated reliefs.

 

5.     The defendant entered appearance vide a memorandum of conditional appearance dated 30th March, 2022 and filed 31st March, 2022, while the statement of defence and other accompanying processes are dated and filed 27th October, 2021.

 

6.     Trial commenced in this suit on the 18th of October, 2023, when the claimant opened his case and testified for himself as CW1.  He adopted his written statement on oath, tendered several documents which were marked Exhibits BB1-BB16, and closed his evidence in chief. The defence counsel was called upon to cross-examine CW1, but he declined, despite the audience granted to him by the court. The claimant subsequently closed his case, and the matter was adjourned to 15th January, 2023, for defence.

 

7.     The defence opened on the 19th of July, 2024, with one Anita Orode, Human Resources officer with the defendant who testified as DW1. She adopted her written statement on Oath, identified Exhibits BB6, BB7, BB9, BB11, BB13 and BB14, and was cross-examined by claimant’s counsel. Under cross examination, DW1 testified that the claimant worked in several branches of the defendant, and his last place of assignment was Warri 4 branch. DW1 confirmed that the defendant has a staff code of conduct which includes sanctions for misconduct, but there are some peculiar cases outside same. The witness however agreed that it is the code of conduct and letter of employment that regulates the employment relationship between parties, while the sanction for poor performance in the code of conduct is suspension for one month.

 

8.     DW1 admitted that in 2018, the Zonal Manager of Warri 4 branch of the defendant directed that all staff of the branch be placed on half salary, and this led to a protest by the workers including the claimant, which did not go down well with defendant. The witness confirmed that CW1 and one other staff were singled out as the arrow heads of the protest, which led to a breakdown of operations at the branch on that day. DW1 admitted that the claimant was issued two separate queries to which he responded, and he was thereafter served with a letter of indefinite suspension without pay. DW1 confirmed that prior to the letter of disengagement issued to the claimant, no other query was issued to him, and that apart from payment of normal salary, the defendant also pays 13th month salary to staff. The witness maintained that remittances were made to the Pension Manager by defendant on behalf of employees, and the claimant’s pension was remitted for the period he worked for the defendant. DW1 admitted that the claimant was recalled back to duty after 20 months suspension, and she maintained that the defendant earlier issued a letter terminating his employment.

 

9.     The defendant’s witness also admitted that upon the claimant’s recall to duty, he was given 3 months’ salary for the period he was on suspension which he rejected, while he insisted on payment for 20 months. DW1 denied that the defendant withdrew the letter recalling CW1 because he rejected the three (3) months’ salary offered to him, and she maintained that the withdrawal of the letter of recall was due to the failure of CW1 to attend the disciplinary committee set up by defendant to investigate the matter.

 

10.            The defence closed its case with DW1 and the matter was adjourned for adoption of final written address, where after counsel for both parties subsequently filed their respective final written address. The case came up for adoption of final written address on the 31st October, 2024, on which occasion, both counsel adopted their respective final written address in this suit.

 

11.            The defendant’s final written Address is dated 6th day of September, 2024, and filed 9th day September, 2024, but was deemed properly filed on the 31st day of October, 2024. Douglas Ogbankwa, Esq, of counsel for the defendant formulated five issues for determination in his address, to wit:

1.     Whether the Claim of the Claimant does not fail as the evidence before this Honourable Court is at variance with the Claim of the Claimant?

 

2.     Whether the Claimant is still in the employment of the Defendant?

 

3.     Whether a judgment given by a court of coordinate jurisdiction binds another court of coordinate jurisdiction?

 

4.     Whether the damages sought by the Claimant as part of the relief sought should not be dismissed as same was not proven by the evidence led before this Honourable Court.

 

5.     Whether this suit is not incompetent in view of the Writ of Summons that is not signed by a legal practitioner or the claimant as required by the rules of this Honourable Court.

 

12.            On issue one, defendant’s counsel cited GLOBE MOTORS HOLDING (NIG) LTD. VS. OYEWOLE (2022) LCN/16738 (CA), on the meaning of suspension. Learned counsel submitted that, the Courts have vehemently upheld the position of the law that an employer has the right to suspend an employee whenever there are reasonable grounds to do so, citing UDEMAH VS. NIGERIAN COAL CORPORATION (1991)3 NWLR (PT. 180)479 at 486, KOOMLONG 1. MCPHEN VS. UNIVERSITY OF JOS CONSULTANCY LTD (2013) LCN/6210 (CA). He noted that the claimant was suspended from the employment of the defendant due to his indulgence in acts of misconduct which are prohibited by the staff code of conduct of the defendant, and he referred to Regulation 10.1.3(2) of the code of conduct.

 

13.            Learned counsel submitted that the code of conduct mandates and authorizes the defendant to suspend its employees on certain grounds of misconduct, and noted that the claimant is guilty of various acts of misconduct. He argued further that, an employer is well within his rights to suspend an employee either pending investigation for an alleged wrong, or as a disciplinary measure for misconduct of an employee. Counsel cited UDEMAH VS, NIGERIAN COAL CORPORATION supra; and GLOBE MOTORS HOLDINGS (NIG) LTD. VS. OYEWOLE (2022) supra.

 

14.            He maintained that an employer can only suspend an employee without pay when the terms of the contract of employment or letter of suspension is specific that he will not be paid salaries during the pendency of his suspension. He further argued that an employer is not liable to pay damages to a suspended employee when the term of employment explicitly state that the suspension shall be without pay, citing ESIAGA VS. UNIVERSITY OF CALABAR (2004)LPELR-1169 (SC).

 

15.            Learned counsel posited that, the fact that the claimant did not file a reply to the defence of the defendant indicates that the claimant has conceded to the facts in the defence, citing ADELEKE VS. ASERIFA (1986)3 NWLR (PT.30)575 @ 340, para H 341, 343, paras D-E. Learned counsel therefore urged the court to dismiss the claim for unlawful suspension and thereby resolve issue one in favour of the defendant.

 

16.            On issue two, counsel submitted that the Labour Act, 2004, regulates employment relationship between employers and employees, and referred to Exhibits BB15 and BB16, arguing that the reason for the termination of claimant’s appointment is expressly stated in the disengagement letter i.e. Exhibit BB15. Counsel contended that the evidence led by the claimant that he had a discussion with the Legal Head of the defendant, one Ukamaka, and  that the defendant agreed to pay him 20 months arrears of salary is untenable as no evidence was brought before this court to that effect.

 

17.            Counsel maintained that the disengagement of the claimant was unchallenged at no point in time, and he relied on ALHAJI JOBU DANFULANI VS. MRS. LYDIA SHEKARI (1996) 2 NWLR (PT. 495) 430. He submitted that withdrawal of the letter recalling the claimant from suspension, and termination of his employment are valid and in order, as same was issued following the gross misconduct of the claimant. Counsel submitted that the claimant is no longer in the employment of the defendant to entitle him to salaries or any benefits he is seeking in his reliefs, and he cited EZE VS. SPRINGBANK (2011) 18 NWLR (PT.1278) 113. He therefore urged the court to resolve issue two in favour of the defendant.

 

18.            On issue three, learned counsel submitted that a Judgment given by a court of coordinate jurisdiction does not bind another, as cases are to be treated based on their individual merit. Counsel posited that Exhibit BB18, is not a judgment delivered by this court, and is therefore not binding on it, citing ADEGBANIGBE VS. OJELABI & ORS (2021) LLJR-SC. He urged the court to discountenance the content of Exhibit BB18.

 

19.            On Issue four, learned counsel submitted that special damages are not granted as a matter of course, and before same is granted, it must be strictly proved with a modicum of exactitude. Counsel noted that the claimant did not tender his pay slip, statement of account or proof of extra pay to sustain the claim for special damages. He cited A.S.E.S.A. VS. EKWENEM (2009)13 NWLR (PT.1158)410 SC, and noted that the reliefs sought in paragraphs A-F of the originating process is in general damages. He posited that the relief in paragraph G is unknown to law in view of the fact that the preceding claims are in general damages. He continued that the claim for N10,000,000 (Ten Million Naira) is frivolous, vexatious and gold digging, and he urged the court to resolve this issue in favour of the defendant.

 

20.            On issue five, learned counsel submitted that the writ of summons (complaint) in this suit is incompetent, he referred to Form 1 as indicated in the National Industrial Court of Nigeria (Civil procedure) Rule, 2017. Counsel noted that the claimant’s counsel did not sign the complaint at the relevant section of the form, rather he created his own signature section that is not covered in the complaint. Counsel further pointed out that in paragraph 40 of the statement of facts the claimant used a biro to write BB16 without the leave of court. He argued that an amendment cannot be effected on a process without the leave of court, and cited Order 26 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. He argued further that failure of claimant’s counsel to sign the complaint as specified in Form 1, is tantamount to not signing the complaint. He cited OBIAKOR VS. OKAFOR 2017. LPELR-43309 (PP.202-203, paras. C-B, and he urged the court to dismiss the claimant’s suit for being incompetent.

 

21.            In conclusion, counsel submitted that since the defendant has been able to defend this case on the balance of probability, he urged the court to enter judgment in favour of the defendant by dismissing the case of the claimant.

 

22.            The Claimant’s Final Written Address is dated 24th day of October, and filed 25th day of October, 2024, wherein Idemudia Ilueminosen, Esq. of counsel for the claimant formulated three issues for determination, to wit:

 

1.     Whether the indefinite suspension without pay of the clamant by the defendant is not in breach of the Defendant‘s Staff Code of Conduct.

 

2.     Whether the Claimant is not entitled to his salary arrears and other benefits during his indefinite suspension.

 

3.     Whether the Claimant’s purported disengagement/termination of employment was done in compliance with the Defendant’s Staff Code of Conduct.

 

23.            Learned counsel for the claimant argued issues one and two together, he pointed out that, by virtue of the contract of employment (staff code of conduct) and the letter of confirmation, there is no provision for indefinite suspension without pay. Counsel argued that the facts and evidence before this court clearly shows that the contract between the claimant and the defendant is guided by Exhibits BB2 and BB3, citing ODEH VS. ASABA TEXTILE MILLS PLC (2004) ALL FWLR (PT. 229) P. 2163 at 2173. He further noted that DW1 admitted under cross examination that Exhibits BB2 and BB3 guides the relationship between the parties.

 

24.            Learned counsel submitted that in order to be able to impose suspension as a punishment for an act of misconduct, it is imperative that same must be stipulated in the contract of employment. Counsel cited CITY CENTRAL GROUP OF COMPANIES LTD VS. EZE (2021) LPELR-55715 (CA); ANAJA VS. UBA PLC (2011) ALL FWLR (PT. 600) 1289 at 1300 and ATOKI VS. ECOBANK NIG. LTD (2014) 47 NLLR (PT.151) 33. Counsel referred to Article 3 and 5 Table 2 which summaries breach and sanctions, and noted that same did not make any provisions for indefinite suspension without pay for an erring employee.

 

25.            Counsel maintained that parties to a contract are bound by the terms therein, he cited ARTA INDUSTRIES (NIG) LTD VS. NBCI (1998) 4 NWLR (PT.546)P 357 at 376, and JERIC (NIG) LTD. VS. UBN PLC (2000)15 NWLR (PT. 691) 447 at 462-463.He therefore submitted that the letter of indefinite Suspension without pay (Exhibit BB8) served on the claimant in 2018 by the defendant is invalid, illegal null and void and of no legal consequence.

 

26.            He noted that the in case of GLOBE MOTORS cited by defendant’s counsel, the validity or otherwise of the suspension of the respondent was not in contention unlike in the present case, and referred to paragraphs and 44 of the claimant’s extant statement of facts. Counsel argued that the defendant did not challenge the evidence of the claimant and he also failed to cross-examine him after his evidence in chief.

 

27.            Counsel argued further that the defendant knowing that it is under obligation to pay arrears of salary for the period of claimant’s indefinite suspension, pleaded with him to accept three (3) months salary out of the 20 months as full and final settlement of the arrears which the claimant rejected. He referred to paragraphs 25, 26, 27,28 and 29 of the extant statement of facts, and written statement on oath of CW1 on which he was not cross-examined, and therefore urged the court to resolve issues one and two in favour of the claimant.

           

28.            On issue three, counsel submitted that the defendant’s purported disengagement/termination of claimant’s employment clearly violates the code of conduct regulating the employment of the claimant. He argued that the unchallenged evidence of the claimant was that the defendant having not found him wanting of the allegations leveled against him, recalled him from suspension by a letter dated 20th March, 2020 (Exhibit BB9). Counsel maintained that the recall to duty of the claimant  brought to an end all issues in respect of the queries (Exhibits BB4 and BB5) he referred to Article 2 (4) (b) of the code of conduct.

 

29.            Counsel submitted that the claimant was never accused of fraud or gross-misconduct and no evidence that the defendant was undergoing restructuring before the purported letter of disengagement was served on him. Counsel referred the court to paragraphs 32, and 34 of the claimant’s written statement on oath, Exhibits BB13 and BB15, and argued that Exhibit BB13 shows clearly that the attitude of the defendant towards the claimant was a clear case of unfair labour practice.

 

30.            The claimant’s counsel noted that Articles 5 item 22, pursuant to which the claimant’s employment was terminated was breached by defendant, and cited JERIC (NIG) LTD VS. UBN PLC. (Supra) and GLOBE MOTORS HOLDINGS (NG) LTD. VS. OYEWOLE (Supra). Counsel maintained that the claimant was never given one-month suspension as provided in item 22, and he urged the court to discountenance the contention of the defendants’ counsel in paragraph 2.08 of his written address.

 

31.            Learned counsel urged the court to disregard the argument of defendant that failure to file a reply to the statement of defence by the claimant implies that the defence is admitted. He argued that a reply is only necessary where a statement of defence raises a fresh issue that was not anticipated by the statement of claims (facts).  He continued that the defence in this suit merely denied the averments in the statement of facts, and did not raise any fresh issue to warrant filing of a Reply, he therefore urged the court to discountenance the defendant’s argument. The claimant’s counsel further urged the court to discountenance defendant’s argument that the originating process in this suit was not signed, and asked the court to examine the originating process in this suit.

 

32.            He noted that the defendant’s witness admitted under cross-examination that claimant’s monthly pension was remitted to Crusader Sterling Pension, and he urged the court to so hold.  In conclusion, the claimant’s counsel urged the court to grant all the reliefs sought by the claimant.

 

33.            I have carefully read the processes filed, considered oral and documentary evidence placed before this court, and I have deduced the following issues for determination from the written address filed by counsel in this case to wit:

1)   Whether or not the indefinite suspension without pay of the clamant in this case is in breach of the contract of employment between parties.

 

2)   Whether or not the Claimant’s disengagement/termination of employment was done in compliance with the defendant’s Code of Conduct for staff.

3)   Whether or not the Claimant is entitled to the reliefs sought in this suit.

 

34.            The defence counsel is contesting the competency of this suit in his final written address, based on the failure of the claimant or his counsel to sign the appropriate section of the complaint, and failure to obtain leave to amend the statement of facts. I will at this stage determine the merit of the contention by defence counsel before delving into the merit of the substantive suit, if need be, as it is a jurisdictional issue which must be determined by this court first before it can assume jurisdiction.

 

35.            Learned counsel for the defendant went on to argue that the claimant is in breach of the Rules of court, as a result of the non-compliance which renders this suit incompetent. On this, while I agree that it is incontestable that the rules of court are not for mere cosmetic effect, failure to comply with the rules should not be allowed to defeat the end of justice.

 

36.            The essence of appending the signature of the claimant or his counsel on the Complaint is for the court to identify the person who issued the process. A scrutiny of the complaint issued in this suit reveals that it was issued by Idemudia Iluminosen, Esq. of Idemudia Iluminosen & Co, Legal practitioner to the Claimant, of No 20, Lagos Road, Opposite Fidelity Bank, Benin City. The signature of I. Iluminosen, Esq. can clearly be seen on the complaint filed before this court, notwithstanding where same was appended.

 

37.            The argument of defence counsel in my view appears to be pedestrian, and based on a mere technicality, meanwhile, the position of the courts have since shifted from a narrow approach to justice or technicality, and evolved to substantial justice. In this regard, see FAMFA OIL LTD V. ATTORNEY GENERAL, FEDERATION 2003 9-10 S.C 31; and Order 5 Rules 1 and 3 of the National Industrial Court (Civil Procedure) Rules, 2017.

 

38.            Likewise, the argument of defence counsel that the claimant used a pen to write “BB16”and thereby amended paragraph 40 of his statement of facts without obtaining leave of this court. Assuming this is true, this will also amount to a mere irregularity, which ought to have been raised by the defendant timeously, not at the final written address stage, The position of the law is that an objection based on irregularity must be raised before any further step is taken by the affected party, thus the defence having taken part in the trial in this suit up to Final Written Address Stage is presumed to have waived his rights to object to such irregularity even if this contention is genuine.

 

39.            Conversely, a thorough scrutiny of the extant statement of facts, reveals no such handwritten amendment in paragraph 40 of the extant statement of facts before me, and the defence counsel has failed to proffer any evidence to the contrary. In line with the above, the perceived irregularity that might occasion any miscarriage of justice was not established by the defence in this instance. Consequently, the contention by defence counsel that this suit is incompetent is unsubstantiated, frivolous and unmeritorious, and same is therefore accordingly dismissed. I so hold.

 

40.            On the first issue for determination, suspension is defined by the court in Shell Pet. Dev. Co. v. Lawson Tack [1994] NWLR PT.545 249 as follows:

“…suspension of an employee is not an unusual procedure taken in order to facilitate the investigation. Thus an employee affected can hardly complain of not having been given a hearing; nor can he demand that the rules of natural justice should apply”

 

41.            Also in Akinyanju v. University of Ilorin [2005] 7 NWLR (Pt.923) 87 the court defined suspension in the following words:

“suspension means to defer, lay aside or hold in abeyance, it also means to halt halfway but not to bring to an end. Suspension pending investigation can never amount to a breach of the employee’s right to fair hearing.”

 

42.            Suspension is therefore not the same as dismissal, the former is a temporary cessation of an employment relationship, while the latter is a permanent severance of same. An Employer is undoubtedly within its rights to suspend an employee pending investigation into any allegation of misconduct, and in the interest of the organization or business. However, where suspension is used as a tool of discipline, it must be clearly stated in the contract of employment, see NEPA V OLAGUNJU [2005] 3 NWLR (PT 913) 602.

 

43.            Furthermore, the suspension of an Employee may be with or without pay or at half pay, and once it is stated in the contract of employment, it is enforceable, however an Employer cannot suspend without pay where there is no express or contractual right to do so. On this see the English case of HANLEY V. PEASE & PARTNERS LTD [1915] 1KB 698, and MARSHALL V. MIDLAND ELECTRIC [1945] 1 ALL ER 653.

 

44.            Suspension of an Employee without pay implies that an employer has taken it upon itself to assess the damages for the employee’s misconduct represented by wages for the period of suspension, see MR PETER O. ATOKI V. ECOBANK NIG. PLC [2014] 47 NLLR (PT. 151) 33. Therefore, where an employee is complaining of wrongful suspension, the terms and conditions governing his employment must be construed to determine the rights and obligations under the contract. See EZENWA V K.S.H.S.M.B. [2011] 9 NWLR (PART 1251) P.89. The legal consequence of suspension is therefore determinable from the terms of employment, and where suspension is vindictive then it would be actionable see Mrs. Abdul-rahaman Yetunde Mariam V. Unilorin THMB & Anor [2013] 35 NLLR (Pt 103) 40.

 

45.            A thorough scrutiny of Exhibit BB3 clearly reveals that the defendant can suspend any erring staff upon the prior approval of Management, while the provisions relating to Suspension are contained in Paragraph 2 sub-paragraph 3 of Exhibit BB3 which are hereby reproduced as follows:

“ 2(3) Limitations on Authority to Enforce

……….

(a)                     All disciplinary actions of the nature of suspension, whether definite or indefinite, must first have a prior approval of Management. Such memos seeking approval must be addressed to the Head Human Resources Group.

(b)                    Recommendations for suspension or disengagement of employee should clearly state the breaches committed by the staff and copies of all supporting documents (e.g. queries, warnings and a report) should be attached.

(c)                     The directive above does not preclude Heads of Departments, Zonal Managers from taken decisive preliminary action like suspension for a definite period to curtail or contain any situation that requires urgent action. This when done should be promptly communicated to the Head, Human Resources Group or Managing Director/Chief Executive Officer where the action is beyond the authority of the supervising officer (Underlining mine for emphasis).

 

46.            Parties without doubt are bound by the terms of an agreement voluntarily executed by them, see Adetoro v. Union Bank of Nigeria Plc [2007] LPELR-8991 (CA). It can be deduced from the above terms in Exhibit BB3 particularly Paragraphs 2(3)(a) and (c) that suspension of an employee must have the prior approval of the Management see Paras.2(3)(a). Paras. 2(3)(c) further reveals that suspension by a Zonal Manager must be for a definite period, but in this instant case, the Zonal Manager issued the letter of suspension to the claimant for an indefinite period without pay contrary to the provisions.

 

47.            There is no evidence that prior approval of the Management was sought before the letter was issued, as such, the Zonal Manager acted beyond his powers when he placed the claimant on an indefinite suspension without pay, instead of a definite period stipulated in Exhibit BB3. In this regard, the defendant is specifically in breach of Para. 2(3)(c) of Exhibit BB3 which is the contract of employment between the parties in this suit.

 

48.            The argument of defence counsel that the averments in the defence were uncontroverted and therefore admitted since the claimant did not file a Reply to the Statement of Defence, will not avail the defendant in this instance. On this, I agree with the claimant’s counsel that it is not in all situation that the claimant needs to file a Reply to the Statement of defence, rather a Reply will only be necessary where new issues not envisaged in the Statement of facts are raised. Thus, in instances where averments in the defence raises no fresh issue, filing a Reply to the Statement of defence is superfluous.

 

49.            The defendant led evidence that the claimant was disciplined for misconduct and was disengaged as a result of his refusal to attend the disciplinary committee set up to investigate the issue in accordance with Exhibit BB3. The defence also alleged that the claimant refused to acknowledge the letter of termination dated 31st January, 2019, which was to take effect on 1st of February, 2019, which the claimant denied. However, it is on record that the claimant acknowledged the withdrawal of his letter of recall dated 10th June, 2020, i.e. Exhibit BB9, and letter of disengagement dated 16th July, 2020, i.e. Exhibit BB14, issued by defendant. Exhibit BB14 is hereby reproduced as follows:

 

“16th July, 2020

 

Keisena Ofioguma,

Staff I.D:5506,

Client Support officer,

Warri 4 Branch,

Delta Zone.

 

Dear Mr. Ofioguma,

 

ACCOMPANYING LETTER: LETTER OF DISENGAGEMENT

 

The above subject matter referred.

 

Several attempts made by the Microfinance Bank to effect service of the “Letter of Disengagement” dated 1st February 2019 for the period of 1st to 8th February 2019 at your last known address: No 5, Makolomi Street, Isoko Road, Ughelli, Delta State have failed.

 

However, with the meeting held on 21st February 2020 at your instance wherein you provided the Microfinance Bank with your new address: No 2 Dumez Road, off Illeh Road, Ekpoma, Edo State, please find attached the “Letter of Disengagement.”

 

Sincerely

Sgd

 

Amen Akenbor

Head, Human Resources Group”

 

50.            It is clear from the above that there is a dispute of facts on when the letter of disengagement written by the defendant was served on the claimant, or when he became aware of it, the defendant has contended that the claimant was aware of his disengagement since 2019, but he refused to acknowledge the letter. The claimant however denied this, he also led evidence that he was served with the letter of disengagement in July, 2020, see paragraphs 32 and 33 of the evidence on oath of CW1. The position of the law is that a letter of termination/dismissal takes effect from the date it is received by the Employee. In the instant case, there is an outright denial by the claimant of ever been aware of this letter (Exhibit BB13), meanwhile Exhibit BB14 reads  “…Several attempts made by the Microfinance Bank to effect service of the Letter of Disengagement” dated 1st February 2019 for the period of 1st to 8th February 2019 at your last known address: No 5 Makolomi Street, Isoko Road, Ughelli, Delta State have failed. This therefore is an implied admission that the claimant was not served until Exhibit BB14 was issued.

 

51.            In effect, Exhibit BB14 dated 16th July, 2020 attests to the fact that the defendant was unable to serve the claimant till July, 2020, and there was no mention of the claimant having prior knowledge of a letter of dis-engagement dated 1st February, 2019(Exhibit BB13) in same. It is trite law that the burden to proof that the letter of termination was served on the claimant rests on the defendant, see FIRST BANK NIG. PLC V. S.M.P. AKIRI 2013 LPELR 21966, where the court held per Denton-West JCA as follows:

“…. the issue as to whether a document is received or not is purely an issue of fact to be proved by evidence. In law, the burden of proving the existence of the material issue in controversy is on a party who will lose if no evidence is adduced”

 

52.            In Agbaje v. Fashola (2008) 6 NWLR (Pt. 1082) 90 at P. 142, paras. A – D Salami J.C.A. specified three different ways in which a party can proof service of a document, as follows:

"Where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can  be established by: (a) dispatch book indicating receipt; or (b) evidence of dispatch by registered post; or (c) evidence of witness, credible enough that the person was served with the document”

 

53.            The defendant not only failed to place any evidence that the letter of termination was served on the claimant, or that he was made aware of same as alleged, but it also admitted its inability  to effect service on the claimant vide Exhibit BB14. Therefore, as far as the evidence in this case goes, the claimant only became aware of the termination of his employment vide Exhibit BB13 in the letter dated 16th July, 2020. This supports the claim that the claimant was on indefinite suspension without pay vide letter dated 29th June, 2018, till 16th July, 2020, when he was served with a letter of disengagement by the defendant (a period of twenty-five months).

54. It is settled law that a person that was wrongfully suspended from work can seek redress in court, and claim his entitlements for the period he was wrongfully suspended. On this, see ACB Ltd v. Ufondu [1997] 10 NWLR (Pt.523) 169 CA; and S.P.D.C.V. EMEHURU, 2006 LPELR 7728, where the court held as follows:

“When an employee is placed on suspension he is placed on hold, he lives day by day in anticipation of either being recalled or laid off.  He is not at liberty to utilize his time elsewhere nor as he desires until after closing hours.  This was the exact disability placed on the respondent by the term of page 2 the letter of suspension from duty dated the 7th June, 1994…to have kept an employee on suspension for that long is in fact, unjustified, cruel and unduly oppressive.” – Pg 192 – 193.

 

55.            Consequent upon the above, I find that the suspension of the claimant by the defendant vide letter dated 28th of June 2018, till 16th July, 2020, is unjustifiable, oppressive and wrongful. It is also a clear breach of the contract of employment between parties, i.e. Exhibit BB3, for which the claimant is entitled to salaries and other benefits for the period of suspension. Consequently, this issue is resolved in favour of the claimant. I so hold.

 

56.            On the 2nd issue, the claimant is contesting his disengagement/termination of his employment on the ground that it was not done in compliance with the contract of employment. The law is settled that in a private employment relationship, an Employer is at liberty to terminate the employment of its employee, but same must be done in accordance with the contract of employment.

 

57.            The Courts rarely order specific performance of contract of employment, to avoid foisting a willing employee on an unwilling employer, see Adebayo S. Joseph & Ors v. Kwara State Poly. & Ors [2013] LPELR 21388 (CA); A.R. MOMOH V C.B.N. [2012] 1NLLR.P. 48 @ P.78; Abomeli v. NRC [1995] 1 NWLR (PT. 372) 451 CA.

 

58.            The position of the law is that termination/dismissal of employment takes effect once it is communicated to the employee, see the English case of HORWOOD V LINCOLNSHIRE COUNTY COUNCIL [2012] U.K.E. @ 0462/11. Also see the unreported case of Anyaehie v. Fidelity Bank Plc Suit No. NICN/LA/622/2012 delivered by O.O. Oyewumi .J. (as he then was),where his lordship held that:

“The law is well settled that a notice of termination/resignation takes effect from the date the letter was received by the employer or its agent, See WAEC V OSHIONEBO [2006] 12 NWLR (PT 994) 258; ADEFEMI V ABEGUNDE [2004] 15 NWLR (PT 895) 1. The Apex Court reiterated and reaffirmed this position of the law in CHRISTIANA YARE V NATIONAL SALARIES AND WAGES COMMISSION [2013] LPELR 20520, S.C.

 

59.            This court has held earlier in this Judgment that the effective date of termination of the employment relationship between parties is the date the letter of disengagement was communicated to the claimant i.e. 16th July, 2020 vide Exhibit BB14.  However, whether or not the termination of the claimant’s employment was done in compliance with the contract of employment in this case is another issue. A scrutiny of the letter of Termination, i.e. Exhibit BB13 reveals that claimant’s employment was terminated for failure to appear before the disciplinary committee set up by defendant thrice, pursuant to an allegation of insubordination contrary to Para. 5 item 22 of Exhibit BB3.

 

60.            The sanction for insubordination under Exhibit BB3 is suspension for one month in the first instance, and disengagement thereafter. There is however no evidence that the claimant was ever invited to any disciplinary committee as no documentary evidence of such invitation was tendered before me. Furthermore, there is no evidence that CW1 was suspended for the offence stated in Exhibit BB13, as the suspension by the Zonal Manager of the defendant vide Exhibit BB8 was “… pending further investigation into the issue…” and therefore, this was not a sanction as stipulated in Exhibit BB3.As a result, I find that the defendant is in breach of the above provision, and it has failed to justify the termination of claimant’s employment by proferring cogent evidence. It is trite law that an Employer bears the burden to justify the reason stated for the termination of an employment.  In instances where it fails to discharge this burden, the termination will be declared wrongful or unlawful depending on the category of employment, i.e. Private or Statutory employment, but in this instance, parties were in a Private Employment Relationship.

 

61.            In line with the above, the disengagement/termination of the claimant’s employment by the defendant is in clear breach of the terms in Exhibit BB3, and this renders the termination of his private employment wrongful. The remedy available for wrongful termination of employment in a private employment is in damages, unlike statutory flavoured employment where an employee can be reinstated. The measure of damages is also the amount the employee would have earned if the employment was to be terminated vide notice under the contract of employment.

 

62.            The claimant’s letter of appointment and contract of employment does not reveal the period of notice required to terminate the employment between parties, in this regard, this court can only revert to the common law position. In arriving at what can be adjudged as reasonable notice while considering the circumstances of this case, the rank of the employee and length of service. In the instant case, CW1 has been with the defendant for seven (7) years before his employment was terminated, while he worked as a client support officer, and was on a monthly salary. Thus, I have arrived at the conclusion that a month notice is reasonable for the termination of claimant’s employment in the circumstances of this case. Consequently, I find that the claimant is entitled to a month’s notice before his employment could have been validly terminated, and hereby award a month salary in lieu of notice for the wrongful termination of his employment by defendant. I so hold.

 

63.            On the 3rd issue, which is whether or not the reliefs sought by the claimant is meritorious, I find that the resultant effect of the holdings above is that the claimant has adduced enough evidence to be entitled to his Relief “a” which is for a declaration that the claimant’s  suspension by the defendant is wrongful, this relief therefore succeeds. It is hereby declared that the indefinite suspension of the claimant by the Defendant without pay vide a letter of 29th June, 2018, is wrongful, null and void.  I so hold.

64.            Relief “b” is a claim in special damages, which must be strictly proofed, and established with the precision of mathematical calculation, see Ezenwa Brothers Nigeria Ltd. v. Ona-Jones Nigeria Ltd. [2012] LPELR-9789(CA) per Jauro, J.C.A. where his lordship held:

 “A claim for special damages must be strictly proved. I must however add that the proof of special damages is not radically different from the general method of proof in civil cases. It is equally proved on the balance of probability. See S.N. Nwabuokuv. P.N. Ottih [1961] 1 ALL NLR 487, Oshinjirin & Ors V. Alhaji Elias & Ors. [1970] 1 All NLR (Pt.1) 153 at 156.” See also Thomas & Ors v. Shell Petroleum Dev. Coy. (NIG) Ltd. [2010] LPELR-8626 (CA).

 

65.            Specifically, the Claimant vide Relief b(i) is claiming thirteenth month salary for 2018 and 2019, he further led evidence and tendered Exhibit BB15, i.e. Pay slip which disclosed a payment for 13th month salary to the claimant for month of December, 2017 in the sum of N56,000.00k.  In this regard, the indefinite suspension of the claimant which covered December 2018 and 2019, qualifies him for 13th month salary for two years, which is calculated as follows:

13th month salary N56,000.00k x 2 = N112,000.00k.

 

66.            Relief  “b”(i) therefore succeeds, and the defendant is ordered to pay the claimant the sum of N112,000.00k as the 13th month salary of the claimant for December, 2018 and December, 2019. I so hold.

 

67.            On the claim for the sum of N45,102.65k as leave allowance for 2018 and 2019 in relief b(ii), the claimant did not place anything before the court in proof of this claim, as such the amount is unascertainable from the evidence placed before this court. As a result, this relief is refused. I so hold.

 

68.            In respect of relief b(iii), i.e. payment of salaries for the period of wrongful suspension, the claimant tendered his payslips for the months of November and December, 2017(Exhibit BB15), which shows that his monthly net salary from the defendant as at November, 2017 is N97,535.46k. I have noted that the 13th month salary, i.e. N56,000.00k was added to December, 2017 salary, making N152, 975.46k per month, which I have already ordered the defendant to pay above.

 

 

69.            Consequently, the salary entitlement due to the claimant for the period he was wrongfully placed on suspension can be calculated from July 2018 – July 2020(25 months) as follows:

N97,535.46k per month x 25(months) = N2,438,311.50k

 

70. The defendant is therefore ordered to pay the claimant a sum of N2,438,311.50k as his salary entitlements from July, 2018 – July 2020, i.e. the period he was wrongfully placed on suspension. I so hold.

 

71.            In relief “c” the claimant is seeking a declaration that the letter of withdrawal of recall letter from suspension, issued to the claimant, and dated 10th June, 2020, is wrongful, and of no effect. This relief is academic in view of my holding that parties were in a private employment, while the claimant’s appointment has been terminated although wrongfully. Pursuant to this, this court has awarded a month salary for the wrongful termination of claimant’s employment in this Judgment, therefore this issue is no more alive, as a result, relief “c” is consequently discountenanced.

 

72.            Relief “d” is for a declaration that the termination of claimant’s employment was not in accordance with the defendant’s staff code of conduct and is therefore wrongful, unlawful, null and void. It must be reiterated here that both parties were in a private employment relationship, and this court cannot foist the claimant on the defendant, as such, the termination of claimant’s employment cannot be voided. The amount due to the claimant as compensation for the wrongful termination of claimant’s employment is one month in lieu of note already awarded by this court. The amount can be deduced from Exhibit BB15, which shows that the gross salary of the claimant as at May 2017 is N111,999.99.  Consequently, the claimant is awarded a sum of N111,999.99K which is a month gross salary in lieu of notice for the wrongful termination of his employment to be paid by the defendant. I so hold.

 

73.            Relief “e” is for a declaration that the claimant is still in the employment of the defendant and he is entitled to the rights, benefits, and privileges of the employment till date of Judgment respectively. This relief is unsustainable in the light of the holdings in this judgment, unlike statutory employment, reinstatement cannot be ordered in a private employment, consequently, this relief is refused.

 

74.            In respect of relief “f” the claimant is seeking an order remitting his monthly pension to Crusader Sterling Pension, his pension Manager, there is no doubt that it is the duty of the claimant to proof his claim before this court. CW1 pleaded and led evidence that the defendant is under a duty to remit his monthly pension to Crusader Sterling Pension, see paragraph 45 of his witness statement on oath that was adopted before this court. This averment was not controverted by defendant or DW1 before this court in anyway, as such, same is deemed admitted. DW1 further confirmed under cross-examination that remittances were made by defendant to the pension manager on behalf of employees, and that of the claimant were also remitted for the period he worked for the defendant.

 

75.            The court has held earlier that the claimant is entitled to his salaries and other benefits for the 25 months he was wrongfully suspended, including his 13th month salary for 2018 and 2019. Thus, in line with the above, pension being a monthly statutory obligation which entails the remittance of employer and employees’ contributions to a pension fund administrator is a benefit due to the claimant. It goes without saying that this relief is ancillary to relief “b” already granted by this court as it falls under “other benefits”, and so the claimant is entitled to this relief for the period he was wrongfully placed on suspension. Consequently, this relief succeeds, and the defendant is ordered to remit the claimant’s monthly pension, the months of July, 2018 – July, 2020, inclusive (the period he was wrongfully suspended) to his pension manager i.e. Crusader Sterling Pension. I so hold.

 

76.            The claimant vide Relief “g” is claiming a sum of N10 million as general damages from the defendant. However, in the light of the monetary sum awarded in this judgment, I find that the claimant has been adequately compensated for the wrongful suspension and termination of his employment. Consequently, the claim for general damages is refused.

 

77.            In conclusion, it is hereby declared and ordered as follows:

                     i.            The indefinite suspension of the claimant by the Defendant without pay vide a letter of 29th June, 2018, is wrongful, null and void.

                  ii.            The defendant is ordered to pay the claimant the sum of N112,000.00k as the 13th month salary of the claimant for December, 2018 and December, 2019.

               iii.            The claimant is entitled to N2,438,311.50k as his salary entitlements from July, 2018 – July 2020, for his wrongful suspension to be paid by the defendant.

                iv.            In respect of relief “d” the claimant is awarded a sum of N111,999.99K as a month salary in lieu of notice for the wrongful termination of his employment to be paid by the defendant.

                   v.            The defendant is to remit the claimant’s monthly pension the months of July, 2018 – July, 2019 inclusive to Crusader Sterling Pension.

                vi.            Reliefs “b(ii)”, “e” and “g” are refused.

             vii.            All monetary sum awarded in this Judgment are to be paid within 60 days failure of which it shall attract an interest of 10% per annum.

 

     A cost of N500,00.00k is awarded against the defendant.

 

    Judgment is accordingly entered.

                                           

                                               Hon. Justice A. A. Adewemimo

Presiding Judge