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National Industrial Court

Chijioke Jude Ibemere -VS-Atlas Microfinance Bank Ltd

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN IN ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D. DAMULAK

ON THE 26THDAY OF JUNE 2019

SUIT NO. NICN/ABJ/347/2018

BETWEEN:

CHIJIOKE JUDE IBEMERE                …………………………………………     CLAIMANT

AND

ATLAS MICROFINANCE BANK LTD    ……..…………………………….     DEFENDANT

REPRESENTATION

Victor Edem Esq. for the claimant

IfeanyichukwuObasi-Nweze Esq. for the defendant

JUDGMENT

  1. INTRODUCTION:

The claimant commenced this action by a complaint filed on the 5th of December, 2018 and accompanied by the statement of facts, witness statement on oath, list of documents and copies thereof. The claimant is claiming against the defendant the following reliefs:

  1. An order of the court declaring that unless the claimant’s employment is terminated in writing, the claimant is still the employee of the defendant and entitled to all the salaries, allowances and/or benefits that go with the office of Assistant General Manager of the defendant.
  2. An order declaring null and void the letter dated July 29, 2015 titled ‘Letter of Recovery and Suspension’ same having been issued and served on the claimant without fair hearing.
  3. An order compelling the defendant to pay the sum of 1,080,000.00 (one million eighty thousand naira only) being the claimant’s leave allowance for 2015.
  4. An order of the court compelling the defendant to pay to the claimant the sum of N230, 000.00 (two hundred and thirty thousand naira only) per month as monthly salary from the month of August 2015 till the date the defendant terminates the claimant’s employment with it.
  5. An award of the sum of N1, 000,000.00 (one million naira only) as cost of this suit.

  1. FACTS OF THE CASE:

The claimant was employed by the defendant on the 7th of February, 2012 as Senior Manager. The claimant had a seamless career with a promotion in 2013 and a staff loan in 2015. In 2015, he was suspended without pay for loan recovery. The claimant is still waiting for the decision of the defendant to terminate his employment or recall him and the defendant has refused to do either, thus this suit.

  1. CASE OF THE CLAIMANT:

The claimant testified in line with his statement of facts that he was employed by the defendant on the 7th of February 2012 as a Senior Manager on an annual emolument of N2, 160,000.00. The letter of employment contained several terms amongst which are the terms that termination is by a month’s notice or payment of one month salary in lieu thereof. Equally, the claimant is entitled to leave allowance which is 50% of the gross annual emolument.

He was promoted in 2013 to the post of Assistant General Manager with an annual emolument of N2, 760,000.00 which is N230,000.00 Monthly. In November 2014, he applied for a staff loan of N1, 000,000 which was approved by the defendant and disbursed into his account on 23/11/2014. The loan attracted 3% interest and the repayment of the loan was to be a monthly deduction from his salary.

In 2015, he was sent on a loan recovery mission from a list of customers without pay or the means with which to do so, via a letter titled ‘Letter of Recovery Suspension’ dated 29/7/2015 and ever since then the defendant has not called him. The defendant frustrated him by refusing to financially facilitate him or provide vehicle or any means for the purpose.

On the25th of January 2016, the defendant requested for the payment of the outstanding balance of the staff loan (N370, 702.00) despite being suspended without pay.

Several oppressive means had been used by the defendant for the recovery of the loan while he is waiting for the defendant’s decision on whether to recall him or terminate his employment. The defendant has refused to terminate his appointment so he can move on with his Banking career.

Under cross examination, the witness testified that he never advanced the sum of N90,000,000.00 to customers of the defendant.He does not personally grant loans to customers.As a creditmanager, he had no power to grant loans.The loans referred to in his suspension letter were granted by the managing Director. The loans department is responsible for recovery of loans. He is not a member of the loan recovery department. He was severally co opted into committees to recover loans. He has not paid the N370,700 in exhibit CJI2 because his salary has been suspended and he has no any other source of income from which to pay. He has recovered some of the loans on the list.

The claimant tendered the following exhibits:

1.Exhibit CJI 1 –  letter of recovery and suspension.

  1. Exhibit CJI2 – Request for payment of the sum ofN370, 702.
  2. Exhibit CJI 3- Claimant’s statement of account with the defendant covering June 2014 to January,2015.
  3. Exhibit NO 4 – List of loans for publication was tendered by the defendant through the claimant.

  1. CASE OF THE DEFENDANT:

The defendant only filed a memorandum of appearance but did not file a statement ofdefence and so rested its case on that of the claimant.

  1. FINAL SUBMISSION OF CLAIMANT’S COUNSEL:

The claimant counsel submitted that facts not challenged are deemed admitted and facts admitted need no further proof. The learned counsel relied on section 123 of the Evidence Act 2011 and also the case of GANA V. FRN (2018) LPELR-44344(SC) PG. 2.That since the defendant did not file a defence, it is deemed that all pleadings contained in the claimant’s statement on oath are unchallenged.

Furthermore, it was argued by the claimant’s counsel that by placing the claimant on a ‘recovery suspension’ without pay going by exhibits CJI 1 and NO 4, he had been converted into a ‘recovery agent’ of the defendant’s debtors which was vile to say the least. This is more so as the claimant during cross examination stated that it was not part of his job to grant credit facilities. All evidence during cross examination pointed to the managing director of the defendant as having that capacity.

In addition, it was submitted on behalf of the claimant that the issuance of the recovery letter (Exhibit CJI 1) was devoid of fair hearing as the claimant was not heard.

The claimant’s counsel went further to argue that unless it is categorically stated in the terms of the contract of employment, the law implies that a suspended worker is entitled to all benefits which he would enjoy had it not been for the suspension as at when due  or at the end of the suspension. This is in line with the principles of natural justice that enjoins fairness. Suspension clearly goes contrary to this principle as it leaves the affected party in limbo without the option of seeking for another job until the subsisting one is terminated.

Finally, it was contended that the terms of contract between the claimant and defendant does not make provision for suspension without pay. Besides, even if such provisions are made, the trend is to set them aside for being incompatible with international best practices and labor standards. Reliance was placed on the case of AfolayanAderonke v. Skye Bank (unreported) suit no: NICN/IB/08/2015, section 7 of the NIC Act, 2006 and section 254C (1) (f) (h) of the Constitution of the Federal Republic of Nigeria, 1999 as altered by Third Alteration Act, 2010 which enjoins the observance of international best practices and labor standards.

In keeping with international best practice, and the case of GABORONE CONSUMERS CO-OPERATIVE SOCIETY V. GAOLEKWE (1999) BLR 177 (CA), wherein it was held that to suspend persons without pay and without affording them an opportunity of being heard, at least to why their pay should not be withheld, was contrary to the rules of natural justice and audialterempartem.

  1. FINAL SUBMISSION OF DEFENDANT’S COUNSEL:

The defendant’s counsel filed his final written address titled reply on points of law. The defendant’s counsel contended that the claimant had to prove that he had discharged the duty of his office with the defendant as such not warranting the suspension. This he had failed to do, as he stated during cross examination that he advanced the credit facilities to the customers (listed in Exhibit NO4) who were actually known to him.  Reliance was placed on the case of AGHARUKA V. F.B.N. LTD (2010) 3 NWLR (PT. 1182) P. 465 AT 481wherein it was held that a plaintiff must succeed on the strength of his case and not on the weakness of the defence.

Also, in the case of E. R. USEN V. BANK OF WEST AFRICA LTD (1965) 1 ALL NLR P. 244, the court held that the defendant was entitled to dismiss the plaintiff for negligence leading to loss of money. But in the instant case, due to the leniency of the defendant, a lesser punishment of suspension was meted to allow the claimant demonstrate his competence.

In the case of NUNNIKV. COSTAIN BLANSEVOORT DREDGING LTD (1960) LLR P. 90it was held that where a skilled servant is engaged, there is an implied warranty that he is reasonably competent for the work he was employed to do. In the case at hand, this implied warranty has been breached by the claimant as he was unable to recover the loans.

ISSUES FOR DETERMINATION:

The claimant had the following lone issue for determination: whether the claimant has proved his case to be entitled to the reliefs sought.

The defendant adopted the above issue for determination. This issue is also hereby adopted by the Court.

COURT’S DECISION:

The defendant in this case did not file a statement of defense but relied on the case of the claimant. The legal implication of a defendant resting his case on the claimant’s case has been stated repeated by the Courts.

In FAIRLINE PHARMACEUTICAL INDUSTRIES LTD & ANOR V. TRUST ADJUSTERS NIGERIA LTD (2012) LPELR-20860(CA) per Tsammani, J.C.A. the Court held as follows;

“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…. 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.”

See also 1. THOMAS OFOMAJA v. HON. COMMISSIONER FOR EDUCATION & ORS(1994) LPELR-14121(CA)
 

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)

 

Similarly, in EMMANUEL OKONKWO v. KANO AGRICULTURAL SUPPLY CO. LTD. & ANOR(2012) LPELR-9466(CA)the court held as follows;

“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 in the case of EMMANUEL OKONKWO v. KANO AGRICULTURAL SUPPLY CO. LTD. & ANOR(2012) LPELR-9466(CA) per Omoleye  JCA 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.”

I accordingly find that the defendant is deemed in law to have completely accepted both the pleadings and evidence or the case presented by the claimant, both in his examination in chief and under cross examination.

The claimant however must still prove his entitlement to the reliefs claimed by evidence and law. The claimant must satisfy the minimum evidence rule.
 

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. SeeAMERICAN 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.”

The material averments relevant to the dispute and issues in the claimant’s statement of facts are covered by the claimants witness statement on oath and, it needs be added at this point, none of these averments and evidence was contradicted or shaken but were rather further strengthened under cross examinationof the claimant and the evidence are both credible and admissible in law. The implication is that they are accepted by the Court and taken as proved having met the requirement of minimum proof.

See1. FBN V BAM (2010) LPELR-4160(CA);
  1. BUA VS. DADA (2003) NWLR (PT. 838) 657;
  2. 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 15 of the statement of facts in the light of the accepted evidence, the documents and the law to determine their success or failure.

 

The following questions need to be answered for a proper determination of the lone issue raised by both side:

Whether the claimant is entitled to fair hearing prior to suspension:

The claimant challenged the validity of the suspension as the claimant was not heard prior to its issuance. The position of the law regarding giving an employee the opportunity to be heard before suspension is that it is a privilege and not a right that can be claimed by the employee. SEE DAVID OSUAGWU V. A.G. ANAMBRA STATE (1993) 4 NWLR (PT. 285) 13 AT PG. 554-; PETER ELAMA V. UNITED BANK OF AFRICA PLC [2019] 1 NICLR, PG. 177.

By exhibit CJI 1, the management alleged that the loan to Dei-Dei was granted by the claimant and that it believes he must be granted time off work to concentrate on the recoveries and that claimant is to proceed on loan recovery leave without pay.

The circumstance for fair hearing does not arise in this case.

In any case, the law relating to suspension and fair hearing has been abundantly made clear. See AKINYANJU V UNIVERSITY OF ILORIN(2005)7NWLR (PT.923) P,87 and AYEWA V UNIVERSITY OF JOS(2006)6 NWLR (PT659)P142where 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”.

See also AMADIUME V IBOK(2006)6NWLR(PT.975)P.158.

I therefore find that the claimant was not entitled to fair hearing before his suspension.

Whether the contract of employment is still subsisting:

Suspension does not affect the contract of employment of the parties. See the unreported case of this Honourable Court, Suit NO.NICN/PHC/110/2013 MR. CHRISTIAN EHISOTIE ILEGBODU V. SKYE BANK PLC, judgment delivered on the June 3, 2015where the Court held:

“To suspend an employee means to defer, interfere, interrupt, lay aside, temporize or hold in abeyance his employment. It does not mean that his employment is terminated, extinguished or brought to an end”.

See also AKINYANJU V. UNIVERSITY OF ILORIN [2005] 7 NWLR (PT. 923)

LONGE V. FIRST BANK OF NIG, PLC.[2010] ALL FWLR (PT. 525) 259, PG. 43.

In S.P.D.C. (NIG.)LTD. V. EMEHURU (2007) 5 NWLR (PT. 1027) 347 AT 376, para. C-E, it was held that-

“Where an employee is placed on suspension… he lives day by day in anticipation of either being recalled or being laid off. He is not at liberty to utilize his time elsewhere or as he desires until after closing hours”.

More so, paragraph 5 of the letter of recovery suspension, exhibitCJI1 states thus; “Attached are the loans you are mandated to recover fully before resuming”.

Besides the position of the law, the letter of suspension itself indicates that the employment relation is not terminated.

I accordingly find that the contract of employment between the claimant and defendant in the instant suit is still subsisting.

 

Whether the claimant is entitled to his salaries during the period of suspension.

The employment letter contains terms of employment. However, the original was not tendered but a photocopy which counsel applied to tender under section 89 and 91(a) of the evidence Act and on that basis it was rejected.

For lack of another document containing the terms, resort would be made to case law. In the case of ALLOYSIUS V DIAMOND BANK PLC (2015)58 NLLR (PT.199) P92 AT39-40,Kola- OlalereJ held 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”.

In any event, exhibit CJI1 talks about recovery leave without pay and it also talks of resuming after recovery of the loan. The claimant was not assisted in any way to recover the said loans. He has recovered some of the loans but has been on suspension since 29thJuly 2015 to June 2019.

Since there is no presumption of law in favour of indefinite suspension without pay as in this case, the authorities of case law are in favour of the claimant. I find that the claimant’s employment having not been terminated, he is entitled to his salaries during the period of suspension.

 On what order the court can make on the status of claimant’s employment.

The claimant contends that he is waiting for the defendant’s decision on whether to recall him or terminate his employment. The defendant has refused to terminate his appointment so he can move on with his Banking career.

In such a situation, this Court is empowered by section 14 of the National Industrial Court Act 2006 as follows;

  1. The Court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.

.

Now the claimant was put on indefinite suspension without pay since July 2015 till date. The letter of suspension did not state time limit for the suspension, it is until he recovers fully the loan before resuming, this makes it an indefinite suspension and it has lasted to June 2019. This strongly points to an intention on the part of the defendant to dispense with the services of the claimant. I so hold.

In similar situations, the Courts have implied an intention on the part of the defendant to terminate the employment of the claimant and had so treated the employment contract. See the case ofGBADESIN V WEMA BANK PLC [2012] 28 N.L.L.R (PART 80) 274 at pp 306 and 307 where this Court held per Kanyip J as follows;

A reading of the authorities on suspension will reveal that an employee suspended with or without pay, and whether indefinitely or for a period of time, remains an employee in service. To this end, therefore, we hold that the claimant’s employment with the defendant is still valid and subsisting although Olafimihan and Ilodibia v Nigerian Cement Co. [1997] 53 LRCN 2507suggest that an indefinite suspension may evince the intention of the employer to repudiate the contract of employment. See also pages 163 to 166 of Prof. ChiomaKanuAgomo’s book, Nigerian Employment and Labour Relations Law and Practice (Concept Publications Limited: Lagos), 2011. A global reading of the cases suggest that while an employee in service, courts are to take account of the length of time that the employee is on suspension. Since in the instant case, the suspension of the claimant ran for more than three years, this evinces an intention on the part of the defendant to repudiate the contract of employment of the claimant. Since there is no documents put in evidence to show that there is even a right on the part of the defendant to suspend the claimant whether indefinitely or not, the indefinite suspension of the claimant in this case must be read subject to the right of the claimant to his entitlements, if case law is anything to go by. For present purposes, therefore, we hold that the indefinite suspension of the claimant for this length of time amounts to a repudiation of the contract of employment of the claimant by the defendant but effective only from the date of this judgment.

 See also SHEU V LAGOS NURTW (FIRST BRT) COOPERATIVE SOCIETY LIMITED [2015] 62 N.L.L.R (PART 216) 40 NIC and OLAFIMIHAN V NOVA LAY-TECH.LTD(1998)4NWLR(PT.547)608.

In the circumstance of this case and on the strength of the above cases, I find that the indefinite suspension of the claimant in this case from June 2015 till date, a period of four years amounts to a repudiation of the contract of employment of the claimant by the defendantbut effective from today the 26th day of June, 2019.

On the whole,  reliefs (a),(c) and (d) of the claim succeed and are hereby granted.

Relief (b) fails and is refused.

COURT ORDER

For the avoidance of doubt, the claim of the claimant succeeds in part and it is hereby ordered as follows;

  1.  It is hereby declared that the claimant is still the employee of the defendant and entitled to all the salaries, allowances and/or benefits that go with the office of Assistant General Manager of the defendant.
  2. The employment of the claimant is deemed terminated by the defendant effective from today 26thJune, 2019.
  3. The defendant is hereby ordered to pay to the claimant the sum of N1,080,000.00(One Million, Eighty Thousand Naira) only, being his leave allowance for the year 2015.
  4. The defendant is hereby ordered to pay to the claimant the sum of N10, 580,000.00(Ten Million, Five Hundred and Eighty Thousand Naira) only, calculated at N230, 000.00 (Two Hundred and Thirty Thousand Naira) only, per month as monthly salary for fourty six (46) months from the month of August 2015 till today 26thJune 2019, less the outstanding loan of N370,700 (three hundred and seventy thousand, seven hundred Naira) only.
  5. Cost is awarded in favour of the claimant in the sum of N100,000.00(One Hundred Thousand Naira)only.
  6. The judgment sum including the cost is to be paid within 30 days of this judgment failure upon which the sum shall attract 10% interest per annum.

This is the judgment of the Court and it is entered accordingly

……………………………..

HONOURABLE JUSTICE K.D.DAMULAK

JUDGE, NICN, ABUJA

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