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IFEOMA THEODORA ONUBOGU -VS- MAINSTREET BANK LIMITED & 2 Ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOGBA

 

DATE:  17TH JUNE, 2019                                                       SUIT NO: NICN/ABJ/60/2012

 

BETWEEN

IFEOMA THEODORA ONUBOGU                            CLAIMANT

 

AND

  1. MAINSTREET BANK LIMITED
  2. AFRIBANK NIGERIA PLC                        DEFENDANTS
  3. NIGERIA DEPOSIT INSURANCE

    CORPORATION (NDIC)                                                                          

 

REPRESENTATION

OBINNA ONYA for the Claimant

OGUMUYIWA BALOGUN for the 1st Defendant

  1. S. SULEIMAN for the 2ndDefendant

 

JUDGEMENT

  1.             This judgement ought to have been delivered before mow following my medical leave and confinement it is being delivered today with the consent of Parties having been and recording in the Courts proceedings. The Claimant commenced this suit on the 7th day of March, 2012 wherein the Claimant claims against the Defendants jointly and severally for the following;

  1. DECLARATION that by virtue of Article 17 (c) of the condition of service binding the Claimants employment, the maximum period the Claimant can stay under suspension is for one year.

  1. DECLARATION that by virtue of the letter of suspension dated 29tl July, 2010 which has not been rescinded or converted to termination or dismissal as at the inception of the suit, the Defendants have breached the contract of employment, and have constructively terminated the Claimants employment without notice or payment in lieu of notice.

iii.                DECLARATION that the Claimant was entitled to payment of half of her basic salary for the duration of the suspension which was in effect until the inception of this suit.

  1. DECLARATION that the Claimant had provided cogent and verifiable explanation for the state of the accounts for which she was found guilty and is therefore not guilty for financial infraction as alleged.

  1. INJUNCTION restraining the Defendants their agents, servants, privies, or howsoever from repossessing the vehicle with registration number XA625ABJ until the Claimants entitlements are fully paid.

  1. INJUNCTION restraining the Defendants their agents, servants, privies or however from interfering with the liberty of the Claimant by reason of anything related to this suit.

vii.              The sum of N1, 416, 666.15 (One Million, Four Hundred and Sixteen Thousand Naira, Six Hundred and Sixty Six Naira, Fifteen Kobo Only) being half the basic salary of the Claimant of N850, 000.00 (Eight Hundred and Fifty Thousand Naira Only) calculated from July 2010 to February 2012 at the rate of N70, 833.35 (Seventy Thousand, Eight Hundred and Thirty Three Naira, Thirty Five Kobo Only) per month.

viii.            N50, 000.00 (Fifty Million Naira Only) being damages for breach of contract.

 

Claimant’s Case

  1.             Claimant averred that she was employed on 17th February, 2007 by Afribank Nigeria Plc. as a Principal Manager and was assigned to function as a branch manager at their Asaba branch office; of which she performed brilliantly well in the disposition of her duties which can be seen in the transformation of Asaba branch from a minimal balance sheet figure of about N700, 000, 000.00 (Seven Hundred Million Naira to N8, 000, 000, 000.00 (Eight Billion Naira) and profit before tax from less than N10, 000, 000.00 (Ten Million Naira) to N300, 000, 000.00 (Three Hundred Million Naira). And was subsequently promoted to the position of Senior Principal Manager in recognition of her excellent and outstanding performance and potentials. Claimant stated that the condition of service captioned ‘’International Bank for West Africa Limited ‘IBWA AFRI BANK’ governed her employment.

 

  1.             Claimant averred that she was suspended from duty surprisingly by Afribank in order to pursue recovery on two accounts namely Olisaeloka Peter Okocha Account number 1270934647514 for a debt of N6, 344,944.70 and Osita Concrete Industry Enterprise Account No 1270935197617 with a debt of N4, 359, 327.27 upon an allegation of “improper account management” which led to the exposure of the bank and was not served a query nor warned of any misconduct prior to the said suspension from duty. She stated that she was not communicated to by the bank for eight months after the suspension letter was given to her, instead she was called by Afribank Nigeria Plc. secretary to come to Lagos wherein she was handed over a letter captioned “invitation to Disciplinary Committee”.

  1.             Claimant stated that she has been under suspension for Twenty (20) months from July, 2010 to February, 2012 without her situation addressed conclusively and without payment of half her basic salary which she is entitled to and as well the 1st Defendant desires to divest the Claimant of the vehicle while still heavily indebted to the Claimant, hence this suit.

  1.             1ST DEFENDANT’S STATEMENT OF DEFENCE/COUNTER-CLAIM filed on 11th October, 2013.

  1.             Contrary to the position of the Claimant, the Defendant stated that it did not takeover Afribank of Nigeria Plc. or the obligations of Afribank of Nigeria Plc. as alleged by the Claimant or at all; but rather, that it purchased all the assets of Afribank of Nigeria Plc., and assumed certain specified liabilities of the Afribank Nigeria Plc.The 1st Defendant averred that it is a separate and distinct legal entity from Afribank of Nigeria Plc. and is not a successor-in-title to Afribank of Nigeria Plc. And that upon commencement of operations on 05.08.2011, it employed its own staff and entered into a distinct contract of employment with each of them.
  2.             The 1st Defendant averred that even, if the Claimant is an employee of Afribank of Nigeria Plc., and the employment of the Claimant with Afribank of Nigeria, Plc. was wrongfully terminated or otherwise determined by Afribank of Nigeria Plc., the Claimant’s remedy (if any) lies against Afribank of Nigeria Plc. which continues to be in existence (albeit in liquidation) and not against the 1 Defendant.

  1.             Further or in the alternative, that the 1st Defendant is not privy to the employment contract between the Claimant and Afribank of Nigeria Plc.; and, neither is the 1st Defendant bound by the Claimant’s contract of employment with Afribank Nigeria Plc., nor is the 1st Defendant liable for the wrongful acts or omissions of the Afribank Nigeria Plc. The 1st Defendant stated that the Claimant’s claim discloses no cause of action against it.

  1.             Whereof the 1st Defendant shall contend at the trial of this suit that this action is Frivolous, vexatious, and without any cause or reasonable cause of action, and should be dismissed, with substantial cost against the Claimant.

CLAIMANT’S DEFENCE TO 1ST DEFENDANT’S COUNTER CLAIM filed on 14th April, 2016.

  1.  In answer to Paragraphs 3, 4 and 5 of the Counter claim, the 1st Defendant to the counter claim stated as follows-

  1. That the Claimant/Defendant to the counter claim did not keep the said Prado Jeep on her own volition but based on an order of this Honourable Court.

  1. The Claimant/Defendant to the counter claim in the main suit is claiming against the Defendant/counterclaimant for wrongful termination and the said Prado Jeep is held in lien over the counter claimant’s indebtedness to the defendant.

iii.                That the Counter claimant is indebted to the 1st Defendant to the counter claim and the debt has not been paid till date. The said debt forms part of the relief in the main suit.

  1. The Claimant/Defendant to the counter claim has been in lawful possession of the vehicle in the course of her employment and maintains an injunctive relief over the vehicle in the substantive suit
  2. the Claimant/Defendant to the counter claim’s possession of the said Jeep.

  1. That the figures presented by the Counter claimant as loss suffered are unfounded estimates.

  1.  Furthermore, that the Defendant/Counter claimant has undergone a restructuring sanctioned by an order of the Federal High Court dated 29th June, 2015 in Suit No. FHC/L/CS/567/15 transferring the assets and liabilities of Main Street Bank to Skye Bank.

  1.  At the trial the Claimant testified as CW, adopted her Written Statements on Oath and tendered             documents, thereafter she was cross-examined by both defense counsel after which the Claimants closed their case. The defendant called Paul Animashaun, who testified as DW adopted his witness statement on oath and tendered 4 documents, was cross-examined by the Claimant’s Counsel thereafter the Defendant close their case, as the 2nd defendants had opted to rely on the 1st defendants’ case.

At this stage the Court directed that parties file their finals addresses in line with Order 19 rule 8 NICN Civil Procedure 2017.

1ST DEFNDANT’S FINAL WRITTEN ADDRESS filed on 9th May, 2018.

ISSUES

  1. Whether the Claimant has made out a case against the 1st Defendant to entitle her to the reliefs sought?
  2. Whether the 1st Defendant is entitled to the reliefs sought in its judgment as per its Counter-Claim?

 

ON ISSUE 1

Whether the Claimant has made out a case against the 1st Defendant to entitle her to the reliefs sought?

 

  1.  Learned Counsel argued that the Claimant was never employed by the 1st Defendant neither was the 1st Defendant responsible for her alleged suspension, wondering what the nexus is between the 1st Defendant and the Claimant? He submitted that the elementary law is that only parties to a contract are bound by the terms of the contract. B.M. Ltd. v. Woermann-Line [2009] 13 NWLR (Pt.1157) 149 at 180, Paras. — F, per Adekeye JSC

ON ISSUE 2

Whether the 1st Defendant is entitled to the reliefs sought in its judgment as per its Counter-Claim?

 

  1.  Learned Counsel submitted that the defense that the Claimant held on to the Prado on the order of this Honourable Court is not supported by any credible evidence and that if at all there was any such justification, it will only avail the Claimant from 14 March 2012 up till 14 December 2015 — the date the interim injunctive order was made and discharged respectively. He urged the Honourable Court to hold that the Claimant resorted to self-help when she failed, refused and neglected to return the Prado to the 1st Defendant after the date of her constructive dismissal, which by the say so of the Claimant occurred on 29th July, 2011 — a year after her alleged suspension by Afribank Nigeria Plc.Counsel posited that the resort to self-help has been steadily deprecated by our courts as shown by plethora of reported decisions. Military Governor of Lagos State &Ors. v. Chief Ojukwu &Ors. [1986] All NLR 233, per Oputa, JSC.

 

  1.  On the second leg of the Claimant’s defense that she held the Prado in lien over the Counter-Claimant’s alleged indebtedness to her, counsel contended that this defense is not available to the Claimant as the 1st Defendant has no contractual obligation whatsoever to the Claimant. First Bank of Nigeria Plc. v. Olufemi Songonuga [2001] 3 NWLR (Pt.1021) 230, per Ogunbiyi J.C.A. (as she then was).Furthermore, that the Claimant is liable for the tort of detinue for failing to return the Prado, at the very least, from the date of request by the 1st Defendant. Zenon Pet & Gas v. Idrisiyya Ltd. [2006] 8 NWLR (Pt. 982) 221,per Muhammad JCA (as he then was).More so, that the 1st Defendant has fulfilled all the condition precedent to sustain a claim in detinue. Wema Bank Plc. v. Arison Trading & Engineering Comp Ltd & Anor. [2015] LPELR-40030.

 

2ND DEFENDANT (NDIC) FINAL WRITTEN ADDRESS filed on 8th June, 2018.

ISSUE

Whether having regard to the facts and circumstances of this case the claimant is entitled to the reliefs sought against the 2nd Defendant.

 

  1.  Counsel to the 2nd Defendant submitted that the 2nd Defendant (NDIC) never and/or did not control any Assets or liabilities of the failed bank (Afribank Nigeria Plc.) whatsoever, but rather that the 2nd Defendant only exercise its power conferred on it under provision of Section 39 of the Nigeria Deposit Insurance Corporation Act, 2006 wherein it organized a bridge bank named Mainstreet Bank Limited (Now Skye Bank Plc.), which in consideration of assuming the liabilities of the defunct/erstwhile Afribank of Nigeria plc. (failed Bank) purchased its assets pursuant to the purchase & Assumption agreement adopted in evidence before the Honourable court.

  1.  He submitted that it is trite law, that consequent upon execution of the purchased and assumption agreement by the parties, the 2nd defendant (NDIC) is now functus officio having transferred all the rights and liabilities to the erstwhile Mainstreet Bank limited (Now Skye Bank plc.) therein.

  1.  Counsel argued that the claimant did not lay any specific claim(s) against the 2nd Defendant (NDIC) whatsoever, and that having answered the above lone question in favour of the 2nd Defendant (NDIC), it therefore flows and follows that the claimant cannot be granted any relief not sought by claimant against the 2nd Defendant (NDIC). PROFESSOR JAMES 0. OGUNLADE V. FEDERAL MORTGAGE BANK OF NIGERIA (2007) 2 NWLR (Pt. 1017) PP. 1-210; N.B.C & 1ORS V. STANDARD (NIG) ENGINEERING CO. (2002)8 NWLR (Pt768) 104; NDULUE V. IBEZIM (2002)12 NWLR (Pt. 780)139; OGUN V. ASEMAH (2002)4 NWLR (Pt756)208; AYALOGU V. AGU (2002)3 NWLR (Pt753)168 pp.30-31 paras G-A.

CLAIMANT’S FINAL WRITTEN ADDRESS filed on 8th June, 2018.

ISSUES

  1. Whether the Plaintiff has made out a case for the grant of the relief sought in the writ of summons.
  2. Whether 1st Defendant/Counter Claimant has proved its case to be entitled to the Judgment of this Honourable Court.

 

ON ISSUE 1

Whether the Plaintiff has made out a case for the grant of the relief sought in the writ of summons.

 

  1.  Learned Counsel to the Claimant noted that in paragraph 5 of the Exhibit Dl, the 1st Defendant deposed that they employed their own staff but under cross-examination, DW1 when confronted with questions stated that they returned staff of Afribank as its staff, thus, that this constitutes a contradiction, as the court cannot pick and choose the piece of evidence it should believe and that the court should discountenance the evidence. DAMO V STATE (2016) LPELR -40239 CA.
  2.  Counsel posited that damages are peculiar compensation obtainable in an action for wrong which is either tort or breach of contract and the purpose of award of damages is to compensate the Claimant or Plaintiff for injury or loss suffered. That the Claimant is entitled to be placed in the same position he would have been, had there been no breach. A.S.E.S.A vs. Ekwenem 2009 13 NWLR PT 1158 410. It counsel’s submission that where condition of service exist between an employer and employee, the provisions contained therein is binding on them. And that any disciplinary measures taken by the employer against the employee upon an allegation of misconduct must be in accordance with the laid down procedure as provided in the condition of service.

P.H.M.B V EIITAGHA (2000) 11 NWLR PT 677 157; EDET V CHIEF OF ARMY STAFF (1994) 2 NWLR PT 3244.

 

ON ISSUE 2

Whether 1st Defendant/Counter Claimant has proved its case to be entitled to the Judgment of this Honourable Court.

 

  1.  Counsel repeated paragraphs 6.39 — 6.48 and urged this Honourable Court to dismiss the Counter-claim of the 1st Defendant.

 

RESPONSE TO THE 1ST DEFENDANT’S WRITTEN ADDRESS

  1.  Counsel noted that the Defendant/Counter Claimant raised two issues for determination to wit;
  2. Whether the Claimant has made out a case against the 1’ Defendant to entitle her to the relief sought and,

 

  1. Whether the 1st Defendant/Counter-Claimant has proved its case, thus entitling it to the reliefs sought therein.

  1.  Counsel noted that he question which the 1st Defendant must answer is ‘’where does the Claimant’s remedy lie?’’ That the 1st Defendant cannot be claiming the Prado jeep in one breath and saying in another that the Claimant has no remedy against them, as that will amount to approbating and reprobating. UDE V NWARA 1993 2NWLR PT 278.

 

  1.  It is counsel’s contention that the said Prado jeep is part of the averments in the Statement of facts which can be seen in paragraph 28 of the Statement of facts and thus the issue of the Prado jeep is sub-judice and awaiting the determination of this suit in its entirety by this Honourable court. BAMGBOYE V OLUSOGA 1996 4NWLR PT 444PG 541-542, PARA H-C.

 

  1.  On the issue of the automatic termination of the Claimant employment, counsel referred the Court to Section 11(1) of the Labour Act Cap L1 LFN 2004.

 

  1.  Counsel posited that by the letter of suspension, which has not till today been converted into termination or dismissal as at the inception of the suit, the 1st Defendant breached the contract of employment and have constructively terminated the Claimants employment without notice or payment in lieu of notice. AFROTEC TECH_SERVICES (NIG) LTD V MIA & SONS LTD (2002) 15 NWLR PT 692 PG 341.He argued that the terms of condition of service Exhibit B is sacrosanct and that the 1st Defendant is entitled to abide by the said terms of condition of service by paying the Claimant half of her basic salary or payment in lieu of notice sequel to Paragraph 17 (c) of Exhibit B and Section 11(1) OF THE LABOUR ACT CAP Li LFN 2004.

 

  1.  Counsel urged the Court to discountenance paragraph 13 of Exhibit D1 as same is not backed up with pleading but rather an afterthought. He contended that Paragraph 13 of Exhibit D1 should tally with paragraph 4 of their counter claim which is at variance and thus included extraneous facts and ought to be stuck out as paragraph 4 of the counter claim does not state that enquiries were made from companies like All States Travel & Tours and Beeshop Logistics operating within Abuja. And that parties are bound by their pleadings. EGOM V ENO 2008 11 NWLR PT 1098 @ PG 342 – 343 PARA H-B; EKPENYONG V NYONG (1975) 2 SC 71.

  1.  Counsel submitted that it is trite law that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. Section 136 (1) of the Evidence Act; SOKWO V KPONGBO 2008 7NWLR PT 1086 P 362 PARA, per C-E Mukhtar, J.S.C.; ARASE V ARASE (1982) 5 SC 33, NWOBODO V ONOH 1984 ALL NLR 1PG 2.

 

  1.  Counsel submitted that the witness could not have known the actual price for the hiring of the said jeep having testified that he is not a car hire valuer and the 1st Defendant is a bank and there is no proof of his assertion by way of documentary evidence or otherwise. That the said averments are mere estimates, opinion or at best speculations which no reasonable court should act on as he is not an expert in car hiring or car valuing in anyway having not obtained the requisite skill or expertise in the related field. ODOGWU V STATE 2013 NWLR PT 1373 PG 106 PARA D-E. and the law is settled that evidence of a witness on a subject of which he is not held out to be an expert in or has demonstrated his expertise is not admissible. Section 67 of the Evidence Act; BAYTIDE NIG LTD V ADERINOKUN 2014 4 NWLR PT 1396 PG 205 PARA A-B.

 

  1.  Counsel referring the Court to Section 37 of the Evidence Act,submitted that Hearsay means a statement, oral or written made otherwise than by a witness in a proceeding. NJOKU V STATE 2013 2NWLR PT 1339 P 568 PARA G-H; F.B.N V ASAWARI 2015 9 NWLR PT 1463 PG 182 PG 2 10-2 11.

 

1ST DEFENDANT’S JOINT REPLY ADDRESS TO THE CLAIMANT AND 2ND DEFENDANT’S FINAL WRITTEN ADDRESSES filed on 16th July, 2018.

ISSUE

Whether the Claimant has made out a case for the grant of the reliefs sought in her Complaints.

  1.  Learned Counsel to the 1st Defendant, submitted that the Clause 3.1 of Exhibit D4 cited by the Claimant is titled “Assets Purchased by Assuming Bank” and makes reference to the assets of Afribank purchased by the 1st Defendant. And that “Indebtedness” referenced in the said Clause must be read in context and in conjunction with other words in the clause to get the accurate interpretation. Kabirikim v. Emefor&Ors. (2009) 14 NWLR (Pt. 1162) 602.

 

  1.  Counsel pointing out that the Claimant argued in Pages 11 and 12 of her CFWA, strangely and erroneously too, contends that Exhibit B (Afribank’s Senior Staff Hand Book) binds the Claimant and that the 1st Defendant is in breach of the contract with the Claimant, submitted that the law is firmly settled on the point that only parties to a contract can be bound by it. Makwe V. Nwukor [2001] NWLR (Pt.733) 272; Omega Bank (Nig.) Plc. v. O.B.C Ltd. [2005] 8 NWLR (Pt. 928) 547.He contended that in the instant case where the Claimant has alleged that the 1st Defendant is bound by the contract of employment between the Claimant and Afribank, the onus is on the Claimant to lead credible evidence in proof of her assertion, as correctly held in Ojoh v. Kamalu [2005] 18 NWLR (Pt.958) 523 that he who asserts must prove.

  1.  Counsel submitted that it is an established principle of law that oral evidence cannot be used to vary the contents of a document. Anyanwu v. Uzowuaka [2009] 13 NWLR (Pt.1159) 445.Counsel noted that although the Claimant has further sought to provide a definition for P & A Agreement to align with his flawed assertions, that there is no authority to support his contention. And more importantly, that it is trite that the content of an agreement is what governs the relationship of the parties to the agreement. Ekweozor v. Savannah Bank [2016] LPELR-42128.

 

  1.  Counsel argued that while the Claimant contended in paragraph 6.25 of the CFWA that the issue of the Prado vehicle is sub-judice awaiting the determination of the suit in its entirety, they do not contest the correctness of the principle enunciated in Bangboye v. Olusoga [1996] 4 NWLR (Pt.444) 541 cited by the Claimant. And that the doctrine of Iis pendens is inapplicable to the present case as the Prado vehicle became the property of the 1st Defendant at the effective date of the P & A Agreement, at which time, there was no pending suit.

 

Court’s Decision

 

  1.  I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind are the issues formulated by the parties in this suit; –
  2. Whether the Claimant has made out a case for the grant of the relief sought in the Statement of Fact.
  3. Whether 1st Defendant/Counter Claimant has proved its case to be entitled to the Judgment of this Honourable Court.

 

  1.  Before I delve into the merits of this case and address some misconceptions prevalent on this matter as well as one in particular, exhibited by the Defendants. The court is required to make a determination of the category of employment under which the claimant operated as this would have a bearing on her reliefs and the case in general and specifics.

Now the law recognizes three categories of Employment

  1. Master and Servant
  2. Service at the pleasure
  3. Statutory Service

See LONGE v. FBN PLC (2010) 6 NWLR (PT. 1189) 1.

  1.  SASEGBON’S LAWS OF NIGERIA, AN ENCYCLOPAEDIA OF NIGERIAN LAW AND PRACTICE, FIRST EDITION, VOLUME 16.

PARAGRAPH 233- DETERMINATION OF MASTER AND SERVANT RELATIONSHIP.

States that “… In other cases governed only by, agreement of the parties and not by statute” the terms “agreed to between the parties in the agreement are binding on them”

  1.  Looking at the claimant’s letter of Appointment Exhibit A6, and the terms contained in the staff handbook Exhibit B, I am satisfied that the Claimant and Afribank Plc were in an employment relationship referred to as Employee/Employer relationship commonly known as Master and servant

  1.  The defendants made heavy weather of the fact that they were not the Claimant’s employers neither did they suspend her so as to be liable to the claimant’s reliefs.

  1.  To the 1st Defendant, the 1st Defendant has no contractual obligation whatsoever to the Claimant. First Bank of Nigeria Plc. v. Olufemi Songonuga [2001].

  1.  The 2nd Defendant maintain that they, the 2nd Defendant (NDIC) have never controlled any Assets or liabilities of the failed bank (Afribank Nigeria Plc.) whatsoever, but that it organized a bridge bank named Mainstreet Bank Limited (Now Skye Bank Plc.), which in consideration of assuming the liabilities of the defunct/erstwhile Afribank of Nigeria plc. (failed Bank) purchased its assets pursuant to the purchase & Assumption agreement,; -Exhibit D4. As per Section 39 of the Nigeria Deposit Insurance Corporation Act, 2006

  1.  In order to properly address the claimants reliefs it is necessary to determine the status of the defendants vis a viz the claimant. The claimant grouse is that she was suspended from work in July 2010 by her employer Afribank Plc,by Exhibit A2, I will consider the rational for this suspension subsequently.

In the case of ATOKI v. ECOBANK PLC (2014) 47 NLLR (PT. 151) 47 this court considered    the meaning, implication and consequence of suspension and held that “Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. Under the Common Law, a term entitling the employer to suspend the employment of an employee will not be implied into the contract of employment. An employee suspended with or without pay, and whether indefinitely or for a period of time, remains an employee in service during the suspension period until the contract of employment is determined by the employer or until a decision about such an employee is taken one way or the other. LONGE v. FBN PLC (2010) 6 NWLR (PT. 1189) 1.

  1.  The employer has the right to suspend an employee when necessary, with or without pay or at half pay. However, employers cannot suspend without pay where there is no express or contractual right to do so. The rationale is that in suspending an employee without pay the employer has taken it upon itself (outside of the court) to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. SHELL PET. DEV. C. (NIG.) LTD v. OMU (1998) 9 NWLR (PT. 567) 672.

 

  1.  Exhibit B, provides for Suspension in Article 17 C) at page 12, and states that; –

“1.       If a person is suspected of serious misconduct as determined by        the bank         whether or not dishonesty is alleged he /she will be          suspended and placed on    half pay 9i.e. of his basic salary  from the         date of the suspension to a             maximum period of one year after             which the employment would        automatically terminate.

  1. if he or she is finally exonerated
  2.  if a staff is suspended of a criminal offence

  1.  What all this means is that although an employer has an absolute right to suspend his employee, he can only do so on half pay if such is reserved in and according to the terms and conditions of their agreement. Suspension without pay is never implied but is required to be proved as a fact. But more importantly it means that a suspended staff remains a staff until this employment is properly determined

  1.  Now, looking at Exhibit D4, the 1st defendants argue that they took over the assets assumed certain specified liabilities of the Afribank, but as exhibited by D4, the 1st defendant took over the liabilities and assets of the Afribank, Exhibit D4 states in the recitals E and if that the Assuming Bank will assume all the recorded deposit liabilities and other liabilities of the failing bank and had agreed so to do.
  2.  Also  the agreement was made in August 2011, and the interpretation sections describes Litigation Liabilities to include claims from administration DW had testified that the 1st defendant on taking over Afribank had assumed AfriBank employees, the documents before the court show that the Claimant was suspended by Exhibit A2 with effect from 29th July 2010 and in 11th May 2011 she was asked to recover outstanding debts within one month at the end of which Afribank would determine the Claimants case. The defendants tendered D3 their licence to carry on Banking Business, which was dated 5th August 2011, which presupposes that they had received Exhibit D3 before executing Exhibit D4.

  1.  The Claimant addressed the 1st Defendant in October 2011 in Exhibit A3 and received from the 1st Defendants Exhibit D5 recalling the Prado Jeep.

Considering that the Claimant appointment had not been properly determined in line with the provision of the Exhibit B, I will address the propriety of the suspension later on in this judgement,  I find that the Claimant was still an employee of AfriBank as at the time of the take over and continued as a staff of the 1st defendant pending the proper determination of her contract. By the takeover of Afribank I find that the 1st defendants stood in the shoes of Afribank especially considering the evidence of DW on this point and as the 1st defendant has not presented the court any evidence as to how they did not absorb the Afribank staff.

  1.  As to the arguments of the 2nd defendant as to their not being proper parties to this suit, these contentions having been raised before this court and duly ruled upon in considered ruling, I find that the inclusion of these contentions in their written address at this stage is bad advocacy.

  1.  The Claimant argued she had a lien for her unpaid entitlements, this I find is another misconception of the law as the question of lien is more suited to the area of sale of goods and such argument definitely has no basis in an Employment relationship. The Claimants argument as to lien is untenable in the circumstances of this case and all such contention are discountenanced, as are all the defendant’s submissions on self-help.

  1.  Now to their Joint Reply to the Claimant’s Final Written address, in law it is improper to introduce new facts or arguments in a reply on point of law. See ALI v. BAYERO UNIVERSITY (2014) 42 NLLR (PT. 130) 258 NIC @ 266, Where it was held that the introduction of new argument by counsel when replying on points of law is not allowed as it is overreaching, since the other party has no opportunity to reply to it. Such argument will be discountenanced.

 

  1.  To reply on points of law, the points of law being replied to must be clearly identified by way of rephrasing and then the reply follows. The reply is to show that that point of law newly raised in the address of the other counsel is misconceived or not applicable to the case at hand or distinguishable or has been overridden by new or later authoritative statement of the law. Counsel instead just started readdressing the Court without showing to the Court what point of law it is that he was replying to. Right of reply on points of law, I must state emphatically, is not another avenue to re-argue the defendants’ case – see the Supreme Court in BASINCO MOTORS LTD. V. WOERMANN-LINE & ANOR. [2009] LPELR – 756 [SC] PP. 41 – 42, PARAS. A – D:

  1.  What I can see in the so-called reply on points of law is an attempt to supply new arguments in support of the earlier arguments canvassed in the defendants’ final written address and not a reply on any point of law newly raised in the claimant’s written address. I accordingly discountenance the so-called reply on points of law for being otiose.

  1.  Now to the merit of the case, the claimant’s reliefs are as follows: –

  1. DECLARATION that by virtue of Article 17 (c) of the condition of service binding the Claimants employment, the maximum period the Claimant can stay under suspension is for one year.

  1. DECLARATION that by virtue of the letter of suspension dated 29th July, 2010 which has not been rescinded or converted to termination or dismissal as at the inception of the suit, the Defendants have breached the contract of employment, and have constructively terminated the Claimants employment without notice or payment in lieu of notice.

iii.                DECLARATION that the Claimant was entitled to payment of half of her basic salary for the duration of the suspension which was in effect until the inception of this suit.

  1. DECLARATION that the Claimant had provided cogent and verifiable explanation for the state of the accounts for which she was found guilty and is therefore not guilty for financial infraction as alleged.

  1. INJUNCTION restraining the Defendants their agents, servants, privies, or howsoever from repossessing the vehicle with registration number XA625ABJ until the Claimants entitlements are fully paid.

  1. INJUNCTION restraining the Defendants their agents, servants, privies or however from interfering with the liberty of the Claimant by reason of anything related to this suit.

vii.              The sum of N1, 416, 666.15 (One Million, Four Hundred and Sixteen Thousand Naira, Six Hundred and Sixty Six Naira, Fifteen Kobo Only) being half the basic salary of the Claimant of N850, 000.00 (Eight Hundred and Fifty Thousand Naira Only) calculated from July 2010 to February 2012 at the rate of N70, 833.35 (Seventy Thousand, Eight Hundred and Thirty Three Naira, Thirty Five Kobo Only) per month.

viii.            N50, 000.00 (Fifty Million Naira Only) being damages for breach of contract.

  1.  In reliefs I – iv, the Claimant is seeking this Court’s pronouncements as to the legal status of her suspension, her status as per the suspension letter and efflux of time, her entitlements and culpability or otherwise, with regards to the reasons for her. In reliefs v -vi, the claimant is seeking to restrain the defendants from repossessing the Prado Jeep or interfering with her liberty. Reliefs vii and viii are for her unpaid salaries and damages.

  1.  With regard to the 1st and 2nd reliefs, considering that in a Master and servant relationship is governed by the terms and condition of the contract. Where the contract of Employment has been reduced to writing, the court and the parties are bound by those terms. The court has no duty to look outside the terms stipulated and agreed therein by the parties to the contract in determining the respective rights and obligations of the parties arising from the contract.

WESTERN DEV.CORP.Vs. ABIMBOLA [1966]4NNSCC 172. NWAUBANI Vs. GOLDERN GUINEA BREWRIES PLC. [1995]6NWLR Pt.400 Pg184

COLLEGE OF MEDICINE OF UNILAG Vs. ADEGBITE [1973]5SC149

INTERNATIONAL DRILING CO. Vs. AJILILA [1976]2SC115

  1.  Looking at the word of Article 17C of Exhibit B, I find that the manner in which the Claimant was sent on suspension in Exhibit A2, is not in line with the provisions of Exhibit B, in the circumstances of this case this means that the Claimant’s suspension was undertaken in flagrant disregard to the provisions of the terms and conditions in Exhibit B, which require the claimant to be placed on half salary which was not accorded the claimant. Now bearing in mind that the rationale is that in suspending an employee without pay the employer has taken it upon itself (outside of the court) to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. SHELL PET. DEV. C. (NIG.) LTD v. OMU (1998( 9 NWLR (PT. 567) 672.

  1.  Now in law non-compliance with stipulated terms such as in this case the suspension of the claimant is procedurally wrongful. I find. Reliefs i -iii, succeed in part but only as far as that the suspension was wrong and improper.

Relief  iv has not been substantiated to the satisfaction of the court as the claimant would be required to present all the documents of Afribank for which they made the allegation, the minutes and decisions of the panels of enquiries to enable the court make a proper adjudication. This relief cannot be granted,

  1.  Constructive dismissal is established when the conduct of the employer creates the atmosphere in which the employee is faced with no other chance or cause of action that to leave the employ on account to the unfriendly disposition of his employer. In this case the unwarranted and irregular suspension meted out to the Claimant as well as the over long duration of the said suspension all evince an intention on the part of the defendants to improperly terminate the claimants employment, I find and hold. It is however settled law that the remedies available to the employee whose contract has been breached are his salary and other legal entitlements due to him in the course of his employment and nothing more. See CHUKWURAH Vs. SHELL PET, CO. LTD (1993) 4NWLR (PT 285) 512 COOPERATIVE BANK PLC Vs. ESSIEN (2001) 4 NWLR (PT 704) 479.

  1.  Relief v and vi are for injunctive reliefs. Relief v, relates to the vehicle with registration number XA625ABJ, I shall deal with subsequently. While relief vi as couched amounts to an attempt to gag the employer and this Court cannot by an injunction gag an employer from disciplining an employee where the need arises; as this is also, without more, outside of the jurisdiction of this Court. This Court cannot gag the process of the administration of justice or due process in the manner prayed for by the claimant in relief vi. The law generally recognises the right of an employer to discipline any erring employee in the interest of the organization or institution, although it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. See NEPA V. OLAGUNJU [2005] 3 NWLR (PT. 913) 602. Indeed, as held in SHELL PET. DEV. CO. (NIG.) LTD V. OMU [1998] 9 NWLR (PT. 567) 672, it is a disruption of an ordinary employer’s business to fetter him with an injunction not to discipline his servant. For these reasons, I cannot therefore grant relief vi, prayed for by the claimant. This relief is accordingly dismissed.

  1.  Relief vii is for salaries for the month of the suspension. by virtue of this Courts finding the claimant is entitled to her full salary and all allowances for the period having found the suspension wrongful the claimant has only asked for both halves of her basic salary and the court cannot go beyond the claims of the litigant not being father Christmas. This relief succeeds in full.

  1.  Relief viii is for damages “It is well settled in a long line of decided cases that the remedy of an employee wrongly terminated or dismissed is to sue for damages, and the treasure of damages is always the salaries for the length of time for which notice of termination could have been given in accordance with the contract of employment See Obo vs commissioner of Education Bendel State (1993) 2 NWLR (Pt. 273) 46, Nigerian Produce; Marketing Board. Vs Adewunmi supra and Western Nigerian Development Corporation Vs Ablmbola (1966) NMLR 381.” Per AKPIROROH, J.C.A. (P. 14, paras. A-C). In this case the claimant is also entitled to 1 month salary in lieu of notice.

  1.  In answer to Paragraphs 3, 4 and 5 of the Counter claim, the Defendant to the counter claim stated as follows

  1.  That the Claimant/Defendant to the counter claim did not keep the said Prado Jeep on her own volition but based on an order of this Honourable Court.

  1.  The Claimant/Defendant to the counter claim in the main suit is claiming against the Defendant/counterclaimant for wrongful termination and the said Prado Jeep is held in lien over the counter claimant’s indebtedness to the defendant.

iii.        That the Counter claimant is indebted to the 1st Defendant to the counter claim and the debt has not been paid till date. The said debt forms part of the relief in the main suit.

  1.  The Claimant/Defendant to the counter claim has been in lawful possession of the vehicle in the course of her employment and maintains an injunctive relief over the vehicle in the substantive suit

            the Claimant/Defendant to the counter claim’s possession of the said Jeep.

  1.  That the figures presented by the Counter claimant as loss suffered are unfounded estimates.

  1. Furthermore, that the Defendant/Counter claimant has undergone a restructuring sanctioned by an order of the Federal High Court dated       29th June, 2015 in Suit         No. FHC/L/CS/567/15 transferring the assets and      liabilities of Main Street Bank to    Skye Bank.

  1. Looking at the counterclaim. I find that the defendants have not         presented this           court with the basis or authority or contract b/w      themselves and the claimant          under which they are entitled to claim cost of hiring vehicles especially as the vehicle was under the subsisting court order.

            Having found some merit in the Claimant case and as neither party had        presented             documents of title, the jeep, title not being in dispute the         order of this court is that    the Claimant shall be liable to return the said vehicle to the 1st defendant on the            execution of the judgment.      Thereupon all the courts injunctive reliefs shall abate by           order of this   court.

  1. The claimants suit succeeds in reliefs 1, 2, 3, 5 in part, 6, 7 the counter          claim   except in respect of the above pronouncement fails.

  1. Judgement is hereby entered accordingly.

………………………………….

HON. JUSTICE E. N. AGBAKOBA

PRESIDING JUDGE

ABUJA.

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