IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE SOKOTO JUDICIAL DIVISION
HOLDEN AT SOKOTO
BEFORE HONOURABLE JUSTICE K.D.DAMULAK
ON THURSDAY THE 25TH DAY OF APRIL, 2018
SUIT NO.NICN/KN/50/2016
BETWEEN
ONYILO WILLIAMS EJEMBI ……………………………..…………………….. CLAIMANT
AND
ECO BANK NIGERIA PLC …………………………………………………………………. DEFNDANT
APPEARANCES;
D.J Muniru Esq.with D.D. Gyang gyang Esq and P.S.Ntem Esq. for the claimant.
Faruk Abdullahi Esq. for the defendant.
JUDGMENT
- INTRODUCTION
By a form of complaint dated 10/10/2016 and accompanied by all the necessary documents as required by the rules of this court, the claimant claims against the defendant as follows;
- A DECLARATION that the termination of appointment of the Claimant (a confirmed staff) without the Defendant issuing any query to the claimant duly received and acknowledged by him nor inviting the claimant nor constituting any committee against the Claimant nor given the Claimant the opportunity of knowing the accusation and or allegation against him nor opportunity of defending himself is wrongful, null and void and of no effect whatsoever and goes contrary to the provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999.
- A DECLARATION that the termination of appointment of the Claimant from the services of the Defendant as an officer via the Defendant’s Notice of termination of appointment dated 7th January, 2014 was wrongful, null and void and of no effect whatsoever.
- A DECLARATION that the suspension of the Claimant by the Defendant via notice of indefinite suspension dated 11th April, 2013 was wrongful, null and void and of no effect whatsoever.
- AN ORDER, settling aside as unconstitutional, null and void whatsoever any instrument of the Defendant suspending and terminating the appointment of the Claimant.
- AN ORDER setting aside the notification of termination of appointment of the Claimant dated 7th January, 2014.
- AN ORDER that the Defendant pay the salaries of the Claimant from the 11th April 2013 till date.
- The sum of N2,000,000.00k (Two Million Naira) as exemplary and aggravated damages against the Defendant for the acts leading to the wrongful termination of appointment of appointment of the Claimant and for the inconveniences suffered by the Claimant arising from the acts of the Defendant.
ALTERNATIVELY
- AN ORDER directing the Defendant to pay the sum of N2,119,545.26 (Two Million, One Hundred and Nineteen Thousand, Five Hundred and Forty Five Naira, Twenty Six Kobo) being his one month salary in lieu of notice of termination, severance pay and total benefit as contained in the notice of termination dated 7th January, 2014.
- 21% interest on the said sum from 7th January, 2014 till date.
- 10% interest on judgment sum till final liquidation.
- 8 months salary with effect from 11th April, 2013 to 7th January, 2014 calculated to be N2,834,567.12k (Two Million, Eight Hundred and Thirty Four Thousand, Five Hundred and Sixty Seven Naira, Twelve Kobo) for the period of suspension.
- Cost of this action.
The defendant filed its statement of defense with all the required accompanying documents on 3/11/2016 and by a motion dated 13/2/2017 and filed on 15/2/2017, which motion was granted on the said 15/2/2017, the defendant filed an amended statement of defence and the claimant filed a reply to the amended statement of defence on 24/2/2017.
- FACTS OF THE CASE
The claimant was an employee of the defendant and was employed as an OFFICER DESIGNATE on 2/10/2008 and rose to the rank of OFFICER, his appointment was confirmed on 22/2/2010. The defendant used to be Oceanic Bank International Plc until it became Eco Bank Nigeria Ltd in 2012.The claimant rose to the grade of Band M, Banking Officer before his termination in 2014. By a letter from the defendant dated 11th April, 2013, the claimant was suspended indefinitely without pay and was required to be reporting to the office of the defendant on a daily basis until 7th January, 2014 when the defendant in a letter terminated the employment of the claimant offering one month salary in lieu of notice and a calculated net benefit of N2,119,545.24K which the claimant claims defendant has not paid, thus this suit.
- CASE OF THE CLAIMANT
By his statement of facts and the claimant’s witness statement on oath as the sole witness, the claimant’s case is that he was a staff of the defendant at its Argungu branch, Kebbi State until 7/1/2014. The defendant used to be Oceanic Bank International Plc. That he was employed as an officer designate by an employment offer dated 2/10/2008.That by a letter dated 22/2/2010 he was upgraded to OFFICER and his appointment confirmed. After the merger of Oceanic Bank International Plc with the defendant, his grade was harmonized to Band M, Banking officer until his termination in January 2014.That sometimes in 2013 the manager of Total Filling Station Argungu called him to complain that some deposits were not credited to its account. He confirmed after checking that only N36, 000 was credited to the account of Total Filling Station. The filling station wrote a petition against him for not crediting its account with the sum of N9,000,000 (Nine Million Naira).That he was never given the said amount by Total Filling Station to deposit. That the internal investigation of the defendant did not find anything indicting him as being responsible for not crediting the said account. That the defendant never set up a panel to investigate him upon being issued a query contrary to the standard procedure of the Bank. That the defendant reported him to the police who investigated the case and issued a report exonerating him. Not satisfied, the defendant instructed the police to prosecute him at the Magistrate court Kebbi State but the case was later abandoned by both the police and the defendant. By the defendant’s letter dated 11/4/2013 he was suspended indefinitely without pay based on the allegation of the said Total Filling Station and was to be reporting daily to the officer and he was so reporting until on 7/1/2014 when his contract was terminated by a letter in which he was offered one month salary in lieu of notice and a total benefit calculated to be N2,119,454.26K which sum was never paid to him despite the fact that his employment was wrongfully terminated.
The claimant tendered four exhibits. These exhibits were 1.Offer of employment, CW1A; 2.Confirmation /Upgrade, CW1B; 3.Letter of indefinite suspension without pay,CW1C and 4. Letter of termination of employment titled ‘YOUR CONTRACT OF EMPLOYMENT’ CW1D respectively. These documents were marked ‘tendered’ and their admissibility was deferred till judgment because the defendant’s counsel was not in court to cross examine CW1 the day he testified.
Under cross examination on 25/1/2018, the claimant testified thus;
Paragraphs 3 and 9 mean the same thing. There was a merger which necessitated a change of name. I worked with the defendant for five years. I was Band M, banking officer before my termination.
Exhibit CW1A is my letter of employment. By paragraph 1 on page 2 of exhibit CW1A, either I or the Bank can terminate the contract. My contract CW1B was not on the same terms with the initial employment exhibit CW1A. On exhibits CW1A and CW1B the conditions for “Termination, other condition” and “Revocation clause” are the same.
I was not given the banks employee hand book but I was granted access and I read it. It was an E-copy. I did not attach a copy of the bank hand book because I did not have it. In response to exhibit CW1C I wrote to the Bank that I would not be able to come to Sokoto from Argungu every day.
I did not write to the Bank challenging the suspension. I did not resign when I was issued suspension letter CW1C. Paragraph 1 page 2 of exhibit CW1A did not mention constitution of the federal republic of Nigeria. The only reason for termination in CW1D is that my services were no longer needed. My basic salary per month as at the time of the termination of my appointment was N354,320.89.
- CASE OF THE DEFENDANT
The defendant had filed a statement of defence through Ladi Oseni Esq. of Steve Adehi & co on 3/11/2016 and later amended same. On the 19/10/2017 when this case was mentioned de novo before this court, one S.E King held brief for Steve Adehi and the case was adjourned to 7/11/2017 for hearing. On 7/11/2017, defendant’s counsel sent a letter for adjournment, the application was refused and the claimant testified as CW1 and the case was adjourned to 13/12/2017 for cross examination. On 13/12/2017 J.T. Nyiatagher Esq. appeared for the defendant and asked for an adjournment to regularize his position and the matter was adjourned to 25/1/2018 on which date the said J.T. Nyiatagher Esq.cross examined the claimant on behalf of the defendant and the matter was adjourned to 22/2/2018 for defence. On 22/2/2018, Alhaji Maidawa Esq. from the same office with J.T. Nyiatagher Esq. appeared for the defendant and informed the court that the defendant was resting its case on that of the claimant whereupon the case was adjourned to 10/4/2018 for adoption of final written address which was so adopted on the said 10/4/2018. As it is therefore, the defendant did not call any evidence in support of its statement of defence.
- WRITTEN SUBMISSION OF CLAIMANT’S COUNSEL
In his final written address, claimant’s counsel submitted that parties are bound by their pleadings and the court will only restrict itself to the pleadings and the evidence before it and that the only pleadings before the court is the claimant’s statement of facts as the defendant has chosen to abandon its statement of defence and that the case will be determined on the principle of minimum evidence. Counsel relied on AFOLABI V WESTERN STEEL (2012)7 SCNJ 48’ AKANDE V ADISA (2012) 5 SCNJ 517 and NIGERIAN BOTTLING COMPANY PLC V UBANI (2013) 12 SCNJ P 527.
Counsel submitted further that the defendant has failed to join issues with the claimant and so should be deemed to have admitted all the paragraphs of the claimant’s statement of facts. Counsel cited the cases of CHAMI V UBA (2010)2 SCNJ P23 and UGWUANYI V NICON (2013)2 SCNJ P646.
Counsel contended that the totality of documentary evidence coupled with the oral testimony of CW1 is enough to ground the claimant’s claim and that the claimant was neither controverted nor discredited under cross examination, relying on CHABASAYA V ANWASI (2010) 5 SCNJP40 and ALHAJI USMAN BUA V BASHIRU DAUDA (2003)6 SCNJ P 219.
Counsel then urged the court to grant the claimant’s claim as prayed.
- WRITTEN SUBMISSION OF DEFENDANT’S COUNSEL
The defendant’s counsel on his part submitted that the termination of the claimant’s employment by the defendant was not wrongful and so the claimant is not entitled to any of his claim. Counsel submitted that the implication of resting the defendant’s case on that of the claimant is that the defendant is saying that the claimant has not made out any case for the defendant to answer or that the defendant has a complete answer in law to the claimant’s case. Counsel relied on TANDOH V CFAO OF ACCRA 10 WACA, 186; ATUGBE V CHIME (1963) 1 ALL NLR 208 and AKANBI V ALAO (1989)3 NWLR 208.
Counsel submitted further that the burden of proof in the case lies on the claimant, and if he fails to discharge the burden, he must fail in his claim. That the burden of proof will only shift to the defendant after the claimant has proved his case. That the case of the claimant can only succeed on the strength of his case and not on the weakness of the defendant’s case except where the case of the defendant supports the case of the claimant. Counsel relied on section 131 of the Evidence Act, ELIAS V DISU (1962) 1 SCNLR 361; ABIODUN V ADEHIN (1962)2 SCNLR 305; OSAWARU V EZEIRUKA (197806-7 SC 135; OCHOCHUKWU V A.G RIVERS STATE &ORS (2012)2 SCNJ 58 and GBADAMOSI V DAIRO (2007) 145B LRCN 529
Counsel further submitted that in the instant case, the issues involved are issues of law which can be settled based on the documentary evidence led by the claimant without more. That this particular case is argued solely on issues of law. That an employment as the one in issue is governed by the terms under which the parties agreed to be master and servant which in this case is exhibit CW1A stipulating that on confirmation of the appointment, termination by either party shall be by at least one month notice in writing or cash in lieu. That a party alleging wrongful termination must show that the employer has no power to dispense with his services. That the claimant has the duty to place before the court the terms of employment and to show how it was breached by the defendant. Counsel relied on KATTO V CBN (1999)6 NWLR (PT.607) 390 at 405. That exhibit CW1 did not forbid the defendant from terminating the employment of the claimant the way it did. That assuming but not conceding that the termination was wrongful, the claimant will only be entitled to damages for breach of contract equivalent to the amount which would have been earned by the plaintiff over the period of notice and no more. RIDGE V BALDWIN (1964) AC 40 at 65 and NIGERIAN PRODUCE MARKETTING BOARD V ADEWUMI (1972) 11 SC 111.
Counsel further submitted that by exhibit CW1D, the appointment of the claimant was terminated on 7/1/2014 and the claimant was settled. If he was not settled there should have been a communication between him and the defendant between the period of two years of the termination before the institution of this suit and that even if the claimant was not settled his one month salary in lieu of notice, he would only be entitled to N354,320.89 which was his basic salary. Counsel then urged the court to dismiss the case of the claimant.
- REPLY ON POINTS OF LAW BY CLAIMANT’S COUNSEL
Replying on points of law, the claimant’s counsel submitted that exhibit CW1D did not talk only about one month salary of N354,320.89 in lieu of notice but also about other benefits giving a sum total of N2,119,545.26.That there is nothing before the court to show that the claimant was settled.
- ISSUES FOR DETERMINATION
The claimant has submitted a lone issue for determination thus;
“Whether the claimant is entitled to his claim based on the evidence before this court tied with pleadings”
While the defendant also submitted a lone issue for determination which is similar to the issue formulated by the claimant thus;
“Whether from the facts of the case, the evidence led, and the law applicable to the termination of the applicant’s employment with the defendant was wrongful and as such the claimant is entitled to the reliefs sought”
The court accordingly will marry the above issues for determination thus;
“Whether the claimant is entitled to any of his claim based on the law, the pleadings and evidence before this court”
- COURT’S DECISION
Before considering the issue formulated for determination, it is important to dispose of some important questions to clear the way for the main issue.
The claimant testified in the absence of the defendant’s counsel and tendered some documents in evidence. These documents were marked ‘tendered’ and their admissibility was deferred till judgment because defendant’s counsel was not in court to cross examine CW1 the day he testified. The defense has eventually raised no objection to the admissibility of any of these documents but rather relied on them. Seeing that all the documents tendered were properly pleaded and are tendered in admissible form, the documents are hereby admitted in evidence and marked as exhibits CW1A to CW1D respectively.
As earlier pointed out, the defendant rested its case on that of the claimant. What is the legal implication? The claimant submitted the implications as follows;
- That it means the defendant has abandoned its defense.
- That the defendant is taken as having admitted the allegations of the claimant against him.
- That the claimant is on that score entitled to the judgment of the court.
- That the proof required of the claimant is a minimal proof.
The defendant’s counsel on his part submitted that the implication of resting the defendant’s case on that of the claimant is that the defendant is saying that the claimant has not made out any case for the defendant to answer or that the defendant has a complete answer in law to the claimant’s case.
The legal implication of a defendant resting his case on the claimant’s case has been stated repeated by the courts.
“It is the law that where a defendant does not adduce evidence, as in the instant case, the evidence before the court goes one way leaving the court with no other evidence or set of facts with which to do the measuring of the scale. This is because in a situation where a defendant leads no evidence in proof of the facts pleaded by him, such pleading is deemed abandoned and the defendant would be left with nothing with which to present against the plaintiff. Thus, in a situation where a defendant abandons his pleading and rests his case on the Plaintiff’s evidence, he is deemed in law to have completely accepted both the pleadings and evidence or the case presented by the plaintiff. In such a situation, it may mean that: (a) The defendant is stating that the plaintiff has not made out any case for the defendant to controvert or respond to; or (b) He admits the facts of the case as presented by the plaintiff; or (c) He has a complete legal defence in law in answer to the plaintiff’s case. It seems therefore that a defendant may adopt the option of resting his case on that of the plaintiff as a legal strategy. If that strategy succeeds, then his case is enhanced, and he may therefore succeed on that ground, but if he fails, that strategy would have been decimated. See KOTUN v. OLASEWERE (supra) at Pg. 430; ADMIN./EXEC; ESTATE OF ABACHA (supra) at Pg. 421 Paras. H-E; OSADIM v.TAWO (2010) 6 NWLR (Pt.1189) Pg.155 and ODUWOLE v. WEST (2010) 10 NWLR (Pt. 1203) Pg.598 at 621. The standard of proof expected of the plaintiff in such a situation is a minimal one, as in such a situation, there is nothing to put on the other side of the imaginary scale against the evidence proffered by the plaintiff.”
2. AKANBI V. ALAO (1989) 3 NWLR (PT.108) 118 |
||||||||||||||||||||||||||||||||||||||||||||||||
| 3. THE ADMINISTRTORS/EXECUTORS OF THE ESTATE OF GEN. SANI ABACHA (DECEASED) V. SAMUEL DAVID EKE-SPIFF & ORS. (2009) LPELR-3152(SC), (2009)2-3SC (Pt. II39) 97, (2009) 7 NWLR 97 SC.
4. ALADE V. AKANDE (1994) 5 NWLR (PT.345)
“The law is well settled that where one of the parties calls no evidence on an issue before the court, the evidence called by his adversary ought normally to be accepted as the truth unless it is of such a nature and quality that no reasonable tribunal will accept it. In other words, the onus of proof in a case or an issue in which one of the parties calls no evidence at all is discharged on a minimal of proof. On this stand, reliance was placed on the cases of: (1) Duru v. Nwosu (1989) 4 NWLR (pt.113) p.24 at p.55, paras. G – H; (2) Buraimoh v. Bamgbose (1980) 3 NWLR (pt.109) p.352; (3) Olujinle v. Bello Adeagbo (1988) 2 NWLR (Pt.75) p. 238 and (4) Nwabuoku v. Ottih (1961) ANLR p.507.” From the above authorities, it is clear that a decision by a defendant to rest his case on that of the claimant has far reaching consequences and a defendant should not take such a decision as a matter of taking chances. This was better stated by the court of appeal per Omoleye JCA in the case of EMMANUEL OKONKWO supra thus; “Where a defendant rests his case on that of the plaintiff at the trial, the defendant has taken the enormous risk of blowing a muted trumpet. The trial court has little or no choice but to accept the unchallenged and uncontroverted evidence placed before it by the plaintiff since it was not discredited by the defendant during cross-examination: Okolie v. Marinho (2006) 15 NWLR (Pt.1002) 316 at pages 340-341; Otuedon v. Olughor (1997) 9 NWLR (Pt.521) 355.” The position stated by both counsel above are basically correct except that it does not mean that the claimant is automatically entitled to judgment. The claimant is still under a legal duty to prove his case by credible and acceptable evidence. Here the claimant must still prove his entitlement to the relief claimed by evidence and law. The claimant must satisfy the minimum evidence rule. This position was aptly stated by Alagoa JCA in PDP V INEC & ORS (2012) LPELR-8406(CA). thus;
“In MARTCHEM INDUSTRIES (NIG.) LTD. V. M. F. KENT (W.A.) LTD (2005) ALL FWLR (PART 271) 1 the Supreme Court stated that- The argument that because the plaintiff’s evidence was unchallenged, judgment should be given in its favour is patently unsound. It is true that in an action, the evidence of a plaintiff may be so weak and so discredited under cross-examination that it is unnecessary for the defendant to testify. It is also trite that the evidence given by the plaintiff even if unchallenged may still be insufficient to sustain the claim made by the plaintiff.”
Having stated the position of the law, the duty of the court now is to consider if any of the averments of the claimant has been proved by evidence and if that evidence is sufficient to sustain the claim of the claimant. In doing this, the claimant’s evidence will be accepted if it is supported by pleadings, if it is not incredible, unreliable or inadmissible in law and is not damaged or contradicted under cross examination. See AMERICAN CYANAMID COMPANY VS VITALITY PHARMACEUTICALS LTD 1991 LEGALPEDIA SC 0YMM [1991] 2 S.C. 47 where the Supreme Court held per Olatawura JSC thus;“Where the evidence of a witness has not been challenged, contradicted or shaken under cross examination and his evidence is not inadmissible in law, and the evidence led is in line with the facts pleaded, the evidence must be accepted as the correct version of what he says.” Similarly, in IGBI V. STATE (1998) 11 NWLR (Pt.574), the Court held per Achike JCA as follows; “Where the trial judge finds the evidence of a witness is unchallenged or uncontradicted, the evidence is not incredible, the trial court has no option but to accept and act on it.” The material averments relevant to the dispute and issues in this suit are paragraphs 11 to 23 of the claimant’s statement of facts and these averments are covered by the claimants witness statement on oath in paragraphs 11 to 23. The evidence of the claimant is both credible and admissible in law. The implication is that the facts deposed to therein are accepted by the court and taken as proved having met the requirement of minimum proof. See 1. FBN V BAM (2010) LPELR-4160(CA); 2. BUA VS. DADA (2003) NWLR (PT. 838) 657; 3. PROVOST LACOED VS. EDUN (2004) 6 NWLR (PT. 870) 476.
Having found as above, the court shall now consider the reliefs of the claimant as contained in paragraph 24 of the statement of facts in the light of the accepted evidence, the documents and the law to determine their success or failure.
The reliefs sought by the claimant are as contained in paragraph 24(A-L). By his prayers in paragraph 24 (a), (b) and ((e), the claimant seeks a declaration that the termination of his employment is wrongful, unconstitutional, null and void and an order setting aside the termination. The reasons for seeking these declarations are also stated in prayer 24(a) as follows; i. That the claimant was not issued any query duly received and acknowledged. ii. The claimant was not invited to appear before any constituted committee. iii. The claimant was not given the opportunity to know the accusation or allegation against him. iv. The claimant was not given an opportunity of defending himself.
The relevant pleadings and evidence are to be found in paragraphs 16 and 17 of the statement of facts and paragraphs 16 and 17 of the claimant statement on oath which state thus; 16. That the defendant only did its internal investigation and there was nothing indicting me as being responsible for not crediting the said account. 17. That the standard procedure of the bank is to set up a panel wherein I ought to be investigated and call witnesses so I can be heard upon being issued a query but was never done. The evidence of the standard procedure of the Bank is not before the court, what the claimant produced were his appointment and promotion letters which do not contain the said standard procedure of the Bank. Only the Banks staff handbook could have possibly contained such standard procedure but the claimant did not produce same and when asked under cross examination he said he was not given a hard copy but only read an “E- copy”. In the circumstance, the court is not put in a position to know the standard procedure of the bank and determine whether or not the Bank breached same. Here is a situation where though the evidence of the claimant is not controverted, it is in sufficient to proof his claim. I agree with the defence counsel that the claimant ought to place before the court the condition of service to show how it has been breached .See SHENAIKE V BRAS VENTURES LTD (2015)64 NLLR(PT225)P45 at p79 where this court per Kanyip J held thus; “A claimant who claims that his termination is unlawful has the duty to prove same by placing before the court terms and conditions of employment from which it can be read the unlawfulness of the termination”.
This apart, I have looked at the letter of termination, exhibit CW1D, paragraph 1 of the letter reads thus; We write to advise you that in line with the terms of your contract of employment with the Bank, the Bank is hereby exercising its right to determine the contract, effective January 10, 2014 because your services are no longer required by the Bank. Accordingly, you are entitled to one month’s salary in lieu of notice. In this regard, the computation of this entitlement together with any others, which you are entitled to, vis –a vis your indebtedness to the Bank is attached herewith. Exhibit CW1A, offer of employment, on page 2 titled “TERMINATION” provides as follows; “on confirmation of your appointment, termination by either party shall be by at least one month notice in writing or cash in lieu” Exhibit CW1B titled “CONFIRMATION /UPGRADE” provides in paragraph 3 as follows; “All other terms and conditions are as stated in your letter of appointment” From the above, it is clear that the termination of the claimant’s appointment was in line with the terms of his employment as contained on page 2 of his letter of appointment. The letter of termination did not state that it was based on any wrong committed by the claimant but simply that his services were no longer required and the termination was stated to be in line with the terms of your contract of employment with the Bank, the Bank is hereby exercising its right to determine the contract. I find that the termination of the employment of the claimant is in line with the term of his contract of employment, it is not wrongful, it is valid and it stands. Prayers (a), (b) and (e) therefore fail and are hereby refused. By his prayers in paragraph 24(c) and (d), the claimant seeks a declaration that his suspension is wrongful, null and void; and an order setting aside the suspension as unconstitutional. These prayers are at best based on the same reasons for prayers (a),(b) and (e) if at all. Again, there are no terms and conditions relating to suspension in evidence before the court and the court cannot find for the claimant in the absence of such a document. Exhibit CW1C titled “INDEFINITE SUSPENSION WITHOUT PAY- INVESTIGATION ON THE CASE OF 9 DEPOSITS THAT WERE NOT CREDITED INTO TOTAL ACCOUNT 0000011685” reads as follows; “Please recall the incidence regarding the above captioned subject. You are hereby placed on indefinite suspension without pay effective Friday, April 12, 2013 pending the conclusion of investigation into the matter. you are requested to report daily to the zonal internal control officer until further notice” Suspension of an employee pending investigation in a master /servant relationship cannot amount to a violation of the fundamental right of the servant under the constitution. See AKINYANJU V UNIVERSITY OF ILORIN (2005)7NWLR (PT.923) P,87 and AYEWA V UNIVERSITY OF JOS(2006)6 NWLR (PT659)P142 where it was held that; ”A master can suspend his servant when necessary and this cannot amount to a breach of the servant’s fundamental rights as it has no bearing with issues of fundamental rights under the constitution”. The suspension letter, exhibit CW1C, discloses a good reason for suspension in the absence of any evidence that the defendant was not entitled to so suspend the claimant. Accordingly, prayers (c) and (d) fail and are hereby refused. By his prayers in paragraph 24(f), the claimant seeks an order for the defendant to pay him his salaries from 11th April, 2013, the date of his suspension, till date. The success of this prayer is dependent on prayers (a-e), the said prayers (a-e) having failed, prayer (f) must of necessity also fail, it is hereby refused.
By his prayers in paragraph 24(g), the claimant seeks an order for the defendant to pay him N2,000,000 (Two million naira) as exemplary and aggravated damages. The claims above having failed, there is no basis for granting prayer(g).The claimant cannot be awarded aggravated damages where his suspension and termination are not found to be wrongful. In any event, granting aggravated damages to the claimant would have amounted to double compensation if prayer (f) for his salaries from 11th April, 2013 till date had succeeded. See Z. P. IND. LTD. V. SAMOTECH LTD. (2007) 16 NWLR (PT.1060)P315 AT P346 where the court held; “In Armels Transport v. Transco (Nig.) Ltd. (1974) 11 SC p. 237. The Supreme Court stated that the rule against double compensation prevents a party from claiming under two heads using different names. Consequently, once a litigant is well compensated under one head of damages he should not be awarded damages under another head, and so an award of damages based on double compensation to a plaintiff/complainant is erroneous in law and will not be allowed to stand. See Agaba v. Otobusin (1961) All NLR p. 299: (1961) 2 SCNLR 13.
Prayer (g) fails and is hereby refused.
The main claim of the claimant having failed, the court is duty bound to consider the alternative claim as contained in claimant’s paragraph 24(h),(i), (j), (k), (l).See A.I.C LTD VEDO STATE GOV & ANOR (2006)LPELR-40132(CA) where the court held; “It is trite law that an alternative claim can only be considered by a Court after the main claim has been considered and refused. See M. V. CAROLINE MAERSK v. NOKOY INVESTMENT LTD (2002) 12 NWLR (PT 782) 472 at 507-508 and XTOUDOS SERVICES NIG LTD v. TAISEI (W.A.) LTD (2006) 15 NWLR (PT 1003) 533 at 550E.”
By his prayers in paragraph 24(h), (i), (j), (k), and (l), the claimant ask for an order directing the defendant to pay him the amount calculated in his termination letter, salaries for the period of suspension, 21% interest on the judgment sum from date of his termination till date, 10% interest on the judgment sum from the date of judgment till final liquidation and cost of this action. Here the termination letter exhibit CW1D is very relevant. A reproduction of exhibit CWID, though a repetition, is necessary herein. Exhibit CW1D titled “YOUR CONTRACT OF EMPLOYMENT” reads as follows; “We write to advise you that in line with the terms of your contract of employment with the Bank, the Bank is hereby exercising its right to determine the contract, effective January 10, 2014 because your services are no longer required by the Bank” Accordingly, you are entitled to one month’s salary in lieu of notice. In this regard, the computation of this entitlement together with any others, which you are entitled to, vis –a vis your indebtedness to the Bank is attached herewith.” The said attachment shows as follows; S/FCT/NORTH/18
From the above, it is clear that the claimant was entitled to a net benefit of N2,119,545.26 which is the first alternative claim of the claimant. There is no reason why the defendant should not be made to pay this sum to the claimant except if it has already done so. The defense counsel has submitted that by exhibit CW1D, the appointment of the claimant was terminated on 7/1/2014 and the claimant was settled. If he was not settled there should have been a communication between him and the defendant between the period of two years of the termination complaining of breach in the disengagement before the institution of this suit and that even if the claimant was not settled his one month salary in lieu of notice, he would only be entitled to N354,320.89 which was his basic salary. It is to be noted that the net benefit of the claimant as calculated in exhibit CW1D and testified about in paragraph 22 of the claimant’s witness statement is N2,119,545.26 and not N354,320.89. Whether or not the claimant was paid this entitlement is a matter of fact to be proved and disproved, it is not a matter of law or inference. Exhibit CW1D did not say the claimant has been settled. The pleading of the claimant in paragraph 23 of his statement of fact and paragraph 23 of his witness statement is this; 23. That the said sum referred to in paragraph 22 above was never paid to me despite the fact that the defendant wrongfully terminated my contract of employment with the defendant. (underlining supplied for emphasis) The above averment is a negative pleading. A negative pleading is not capable of proof as a man cannot be expected to proof that which is not. In such a situation, the defendant can only deny and escape liability by pleading and asserting the positive, in this case, by asserting that it has paid the claimant. It will then put the burden of proving the positive assertion on the defendant. A party only has the burden of proving the existence of a fact, not the non-existence of a fact. This is the import of section 136 of the Evidence Act, 2011.
“The law is that the burden of proving a particular issue rests squarely on that party, whether plaintiff or defendant, who has asserted the affirmative of that issue, and not the party asserting the negative. See PLATEAU STATE V. ATT. GEN. FEDERATION (2006) ALL FWLR (Pt. 305) 590; MELIFONWU V. EGBUJI (1982) 9 SC 145.” |
||||||||||||||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||||||||||
“On the award of the Pre- judgment interest of 25%, the Supreme Court in the case of AFRI BANK v. AKARA (2006) ALL FWLR (PT.304) p. 401 held:
Except where parties have agreed on payment of interest, it is not right to award interest predating the date of judgment. There must be express agreement that interest will be charged. In the instance case, the trial court was in error to have awarded pre-judgment interest to the Plaintiff without prior agreement between the parties“.
And in his consenting judgment in the above case, Ejembi Eko JCA stated thus;
“Pre-judgment interest is either statutory or contractual. The appellant having not proved that the pre-judgment interest he had claimed was either statutory or contractual had failed to justify his entitlement to that head of claim. The learned trial judge was, in my firm view, therefore wrong to have awarded same”.
I am properly guided by the above authority not to fall in to an error. To borrow the words of my lord Ejembi Eko JCA, Pre-judgment interest is either statutory or contractual. The claimant having not proved that the pre-judgment interest he is claiming is either statutory or contractual has failed to justify his entitlement to that head of claim.
The claimant’s prayer in paragraph 24(i) for 21% pre-judgment interest fails and is hereby refused.
The claimant in paragraph 24(j) is asking for 10% post- judgment interest on the judgment sum until final liquidation. Post judgment interest is awarded by the court where there is power conferred on it to do so. see STABILINI VISIONI LTD. V. METALUM LTD (2008) 9 NWLR (PT.1092) 416 AT 436.
This court is empowered by Order 47 Rule 7 of its Rules to award interest on delivery of judgment at a rate not less than 10%.
The claimant’s prayer in paragraph 24(j) for 10% post- judgment interest on the judgment sum until final liquidation succeeds and is accordingly granted.
The claimant in paragraph 24(k) prays for 8 months salary from 11th April 2013 to 7th January, 2014. The question now is whether the claimant is entitled to his salaries for the period of his suspension.
| In MOBIL PRODUCING NIGERIA UNLIMITED V. OTOABASI EFFIONG |
(2011) LPELR-9055(CA) AKEJU, J.C.A. defined suspension thus; |
“The word “suspension” means to defer, interfere, interrupt, lay aside, temporize or hold in abeyance. It does not mean terminate, extinguish, or bring to an end. See Esiaga v. University of Calabar (2004) ALL FWLR (pt. 206) 391, In Longe v. First Bank of Nig. Plc (2010) All FWLR (pt. 525) 259, suspension was said to mean a temporary privation or deprivation or stoppage of privileges and rights of a person and a disciplinary procedure that can be for a fixed or indefinite period.”
It is also clear from the termination letter, exhibit CW1D, that the claimant’s salary for the period of his suspension was not included in the calculation. This is equivalent to terminating the claimant’s employment with effect from the date of his suspension.
| In MOBIL PRODUCING NIG. UNLT & ANOR. v. UDO TOM UDO [PC NO. 542] |
| (2008) LPELR-8440(CA) the court held; |
The primary question to be determined now is, “what is the status of an employee during suspension”? For proper perception of the issue, I would, refer to Orojo’s Book on Nigeria Commercial Law and Practice Vol. 1 p. 552 paragraph 171 where he stated that subject to agreement, a contract subsists until determination. He cited the case of Adekunle vs. Western Region Finance Corporation (1963) NWLR where the Plaintiff was suspended from work on allegation that he was responsible for the loss of some money belonging to the Defendant. He was subsequently charged with criminal offences relating to the loss but was discharged and acquitted for lack of sufficient evidence. The Defendant then purported to dismiss the Plaintiff with retrospective effect from the date of his suspension. The Plaintiff claimed the salary for the period of suspension and succeeded. Fatayi-Williams, J referred to Re Rubel Bronze & Metal Co. & Vos., and to Hanley vs. Pease & Partners Ltd where Rowlatt, J. said
”The employer has no implied power to punish the workman by suspending him for certain period of his employment, the contract subsisting all the time… “He held that, “by merely suspending him from performing his duties, the Defendant Corporation has allowed the contract of employment to subsist during the relevant period and it is not open to them to put an end to it retrospectively twenty-eight months later. They cannot, in my view, escape liability for paying the Plaintiff’s salary during this period by dismissing him retrospectively”.
Similarly, in ALLOYSIUS V DIAMOND BANK PLC (2015)58 NLLR (PT.199) P92 AT39-40 this court sitting at the Port Harcourt division held per Kola- Olalere J thus;
“However, the law is trite that suspension is not termination or dismissal; consequently, within the period of the suspension, with or without pay, indefinite or for a specific period, the employee so suspended is still in the employment. His appointment was merely put on hold to enable his employer to properly investigate the allegation against him. And so, the employee will be entitled to his salaries and allowances for the period of the suspension. See Longe V First Bank of Nig. Plc (2010) ALL FWLR (pt.525) 259 and Mobil Producing Nig. Unlimited v Effiong (2011) LPELR CA/C/204/209”.
I accordingly find that the claimant is entitled to be paid his salaries for the period of his suspension from 12th April 2013 to 7th January, 2014.I so hold.
The suspension of the claimant by exhibit CW1C was with effect from April 12th, 2013 and his appointment was terminated by exhibit CW1D on 7th January, 2014, this is a period of 9 months less 5 days, however, the claim is for 8 months salary. The court cannot award to the claimant more than he has prayed for. By the claimant’s evidence under cross examination and exhibit CW1D, his monthly salary was N354, 320.89, if one multiplies N354, 320.89 by 8, the product will be N 2,834,567.12.
The claimant’s prayer in paragraph 24(k) for the sum of N 2,834,567.12 being 8 months’ salary covering the period of his suspension succeeds and is hereby granted.
For the avoidance of doubt, the court hereby makes the following orders;
- The defendant is hereby ordered to pay to the claimant the sum of N2,119,545.26 (Two million, one hundred and nineteen thousand, five hundred and forty five naira and twenty six kobo) being his one month salary in lieu of notice, severance pay and total benefit as contained in the notice of termination dated 7th January,2014.
- The defendant is hereby ordered to pay to the claimant the sum of N2,834,567.12 (Two million, eight hundred and thirty four thousand, five hundred and sixty seven naira twelve kobo) being the claimant’s 8 months’ salary for the period of his suspension.
- The defendant is to pay the total judgment sum of N4,954,112.38 within 30 days of this judgment failure upon which the judgment sum shall attract 10 % interest.
I make no order as to cost.
Judgment is entered accordingly.
…………………………………………….
HONOURABLE JUSTICE K.D.DAMULAK
PRESIDING JUDGE
