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National Industrial Court

Olugbenga Daniel Sholarin -VS- Vixen Enterprises Ltd & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 16th December 2019                           SUIT NO. NICN/LA/516/2018

BETWEEN

 

OLUGBENGA DANIEL SHOLARIN                              CLAIMANT

AND

  1. VIXEN ENTERPRISES LIMITED                                  DEFENDANTS
  2. GLOBACOM LIMITED

JUDGMENT

  1. The Claimant by his complaint dated and filed on 15th October 2018 claimed against the Defendants as follows:

  1. A declaration that the Claimant was in the employment of the 1st Defendant until his purported dismissal on the 20th August 2018.

  1. A declaration that the Claimant’s indefinite suspension without pay for over 3 years is an unfair labour practice.

  1. An order of Court directing the Defendants to pay the Claimant, the sum of N21, 882,881.02 [twenty-one million, eight hundred and eighty-two thousand, eight hundred and eighty-one naira, two kobo] only being his total outstanding salaries from April 2015 to August 2018.

  1. 18% [eighteen percent] compound interest on the said outstanding salaries of N21, 882,881.02 [twenty-one million, eight hundred and eighty-two thousand, eight hundred and eighty-one naira, two kobo] only until same is fully paid.

  1. N10, 000,000 [ten million naira] damages against the Defendants for unfair labour practice and the attendant agony, mental, emotional and psychological trauma suffered by the Claimant.

  1. N1, 000,000 [one million naira] against the Defendants being cost of this suit.

The Claimant filed with his complaint a statement of facts, list of witness, statement on oath, list of documents and copies of the documents. The originating processes were served on the Defendants on 16th October 2018. The Defendants filed its memorandum of appearance, statement of defence and counterclaim and accompanying processes on 24th December 2018 which were deemed as properly filed and served on 10th January 2019. The Claimant’s reply to the statement of defence and defence to counterclaim and accompanying processes were filed on 12th February 2019. Trial commenced on 12th December 2018 and was concluded on 29th April 2019. The Claimant adopted his statements on oath dated 15th October 2018 and 12th February 2019 as his evidence in chief and tendered 12 documents which were admitted in evidence and marked as exhibits 1 to 12; and he was duly cross-examined. The defence witness, Mr. Olufemi Kolawole, also adopted his statement on oath dated 9th January 2019 as his evidence in chief and tendered 9 documents which were admitted in evidence and marked as exhibits DW1A to DW1K and was cross-examined. In line with the Rules of this Court, parties filed their final written addresses which their respective counsel adopted as their final arguments in support of their case. The matter was consequently set down for judgment.

  1.  In the Defendants’ final written address, its counsel, Mr. Kelechi Odoemelam, formulated five issues for determination to wit:

  1.       Whether the Claimant has demonstrated his entitlement to the declarative reliefs he seeks from this Honourable Court?

  1.       Whether the Claimant is entitled to salaries during the period of his suspension, the said suspension having been imposed on the Claimant on account of his admitted breach of duty of care and of the 2nd Defendant’s standard operating procedure for the release of stock?

                     iii.      Whether the Claimant is entitled to be awarded interest as claimed?

  1.       Whether in the circumstances of this suit, the Claimant is entitled to damages and costs as claimed?

  1.       Whether the Defendants/Counter-claimants have not demonstrated their entitlement to the reliefs sought against the Claimant/Defendant to the Counter-claim?

Mr. Odoemelam argued issues one, two and four together. He submitted that declaratory reliefs, by their nature, are discretionary and are not to be granted lightly. The party seeking a declaratory relief must prove his entitlement to it and this obligation is sacrosanct. He referred to the case of Taduggoronno v. Gotom [2002] 4 NWLR [pt.757] 453 at 476 amongst others. Learned counsel reviewed relevant evidence and queried whether in view of the settled facts of this case the indefinite suspension without pay imposed on the Claimant as a disciplinary measure for his admitted breach of the Defendants’ standard operating procedure amounts to unfair labour practice and whether he has established entitlement to such declaration. The case of University of Calabar Teaching Hospital & Anor. v. Juliet Koko Bassey [2008] LPELR-8553 [CA] pages 16-17 was cited on definition and nature of ‘suspension’. On an employer’s power to suspend an errant employee he quoted the dictum of Uwaifo J.C.A., in Udemah v. Nigeria Coal Corporation [1991] 3 NWLR [pt.180] 477 at 486 where his Lordship held, inter alia, that the right to suspend an employee is always available to an employer to effect proper investigation of allegations or during the process of disciplinary action; and submitted that, from judicial authorities, indefinite suspension and suspension as a disciplinary measure have both received judicial blessing and therefore cannot be described as unfair labour practice, more so when the breach/misconduct for which the Claimant was suspended in the first place is one that has occasioned massive loss to the 2nd Defendant.

He argued that as stock controller, one of the Claimant’s primary duties was to ensure that the standard operating procedure for release of stock was complied with and that due authorization/approvals were obtained before he released stock in his custody. He referred to paragraphs 4, 5, 6 and 7 of the Statement of Defence and contended the averments therein were not denied and must be deemed admitted as true. Order 30 Rule 6[1] of Rules of this Court and the case of Joshua Ogunleye v. Babatayo Oni [1990] 2 NWLR [pt.135] 745 at 766- 767 were cited in support. It was further argued that the Claimant’s suspension was as a result of his breach of his duty, to wit: deliberate non-compliance with the 2nd Defendant’s standard operating procedure by transferring goods to different locations without authorization. He therefore urged the Court to accept and hold that the Claimant verbally admitted releasing the stock without authorization before Exhibit 4/DW1C was issued. It was also submitted that a fact is deemed to be admitted if it is not denied and the party alleging same is relieved of the burden of proving such admitted fact in line with the doctrine that admitted facts need no further proof. He referred to Section 123 Evidence Act, 2011 and T. Lawal Owosho & Ors v. Michael Adebowale Dada [1984] LPELR-SC.135 page 17. Learned counsel contended that aside the Claimant’s implied admissions, at the second and last paragraphs of Exhibit DW1E the Claimant unequivocally acknowledged that he released the stock without authorization and pleaded for clemency.

On Exhibit DW1G which was tendered without a certificate of authentication pursuant to section 84 of the Evidence Act, 2011, learned counsel invoked the Court’s inherent powers to depart from the rules of evidence in the interest of justice pursuant to Order 1 Rule 9[2] and [3] of the National Industrial Court [Civil Procedure] Rules 2017 and Section 12[2][b] of the National Industrial Court Act, 2006 and, in so departing from the rules of evidence, to take cognizance of and construe Exhibit DW1G as admissible evidence especially in view of the fact that the Claimant, who authored the email contained in Exhibit DW1G has not been embarrassed, prejudiced or taken by surprise neither has he denied making it nor challenged its authenticity, accuracy and correctness or in any way objected to its admissibility. He submitted that the Claimant’s testimony under cross examination that he obtained approval to release the stock is false because it is intended to recant the admission made in Exhibits DW1E and DW1G and a desperate contrivance to escape the consequences of his misdeeds. The Court was urged to refuse to be swayed by the Claimant’s subterfuge. It was also contended, assuming without conceding, that the alleged authorization from Prince Dimkpa exists, the Claimant’s failure to tender a copy thereof in this proceeding raises the presumption of adverse inference against him. He urged the Court to presume that the document, if produced, would be unfavourable to the Claimant and relied on Section 167[d] of the Evidence Act. The Court was further urged to reject the Claimant’s oral testimony in respect of the imaginary authorization and hold that in the circumstances of this case, the suspension of the Claimant without pay does not amount to unfair labour practice and to accordingly refuse relief [ii].

  1.  On relief 3, he submitted that in the circumstances of this case, the Claimant is not entitled to any salaries while on suspension, therefore, the claim ought to be refused. Learned counsel explained that an employer owes certain duties to his employees, chief among which is the duty to provide work and pay wages. The duty to pay wages being such that even when the employer fails to provide work, he is still bound to pay the employee’s wages insofar as the employee presents himself for work. He argued, however, that this duty is not sacrosanct as the Labour Act particularly Section 17[1][b] brooks an exception where the employee is on suspension for breach of discipline or any other offence, in which case the employer is discharged from the duty to provide work and/or pay wages.

On the effect of an employee’s suspension on his wages, learned counsel relied on the dictum of Adekeye J.S.C., in Longe v. FBN. Plc [2010] 6 NWLR [pt. 1189] pages 80-81 to the effect that suspension is a state of affairs which exists while the contract between the employer and employee is in force, but when neither work is done nor remuneration paid; and noted that the reasons for the Claimant’s suspension were stated in Exhibit 4/DW1C to be gross misconduct and disregard for constituted business process and fictitious transfer of goods to different locations without authorization which allegations were admitted by the Claimant. It was therefore submitted that having been suspended on grounds of gross misconduct and disregard for constituted business process which the Claimant admitted, the Claimant falls squarely within the proviso stipulated at Section 17[1][b] of the Labour Act and, accordingly, is not entitled to salaries for the duration of his suspension. The Court was urged to so hold and accordingly refuse relief 3.

  1.  On the claim for damages, it was submitted that damages can only be awarded where the Claimant proves that he has suffered some injury due to an act or omission of the Defendant. The Claimant failed to so prove hence he is not entitled to damages. Counsel argued, assuming without conceding, that the Claimant indeed suffered any trauma and agony as alleged, the question is whether the Claimant did not bring the injury upon himself? He returned an affirmative answer and added that the Claimant is the architect of his misfortune and if he comes to equity he must come with clean hands.

On costs, learned counsel explained that award of costs is discretionary and the discretion must be exercised judicially and judiciously. He argued that there is a duty on the party seeking costs to place material facts before the Court; and costs being in the nature of special damages must be specifically pleaded and strictly proved, but the Claimant neither pleaded nor proved particulars of the sum claimed. He referred to Hadejia Jama’are River Basin Development Authority v. Chimande [Nig.] Ltd [2016] LPELR – 40202[CA] page 22 and argued that the consequence for a party’s failure to itemize and prove his claim for costs is addressed in Fhomo [Nig.] Ltd v. Zenith Bank [2016] LPELR – 42233[CA] pages 35-36 which is that the claim must be refused and urged the Court to refuse reliefs 5 and 7.

  1.  On the claim for interest, counsel posited that at common law, interest is not recoverable on ordinary debt unless there is a contractual obligation, business usage or statutory provision in that regard. Being in the nature of special damages, he argued, it is trite law that entitlement to interest must be strictly pleaded and proved as a trial Court will not infer interest from an alleged usage or custom which is not established by evidence. The case of Nigerian Sugar Company Limited v. Mojec International Ltd. [2005] ALL FWLR [pt. 262] 475 at 495-6 was cited in support. He added that the Claimant neither pleaded facts nor proffered evidence to establish his entitlement to pre-judgment interest and thus not so entitled. He urged the Court to discountenance the claim for pre-judgment interest.

He argued further that while relief 3 is a claim for the alleged principal sum, relief 4 is for accrued interest and, being ancillary to relief 3, it is trite law that where the principal claim fails, any ancillary claim must also fail. Atunka & Anor v. Aboki & Anor. [2016] LPELR-41199[CA] was referred to.

On issue 5, which is whether the Defendants have proved their entitlement to the counterclaim, counsel referred to section 7.1.1 of Exhibit DW1K and explained that the Claimant, in breach of this provision, released the goods in question to Richard Babatunde and failed to comply with the stipulated procedure and documentation for transfer of stock as outlined from the 2nd paragraph of section 7.1.1 to paragraph 7.5.0 of Exhibit DW1K. The Court was urged to declare the Claimant’s release of the stock to Bababtunde Richard without due authorization a breach of the 2nd Defendant’s standard operating procedure for release of stock and grant relief one.

On the claim for N36, 237,000.00 [thirty-six million, two hundred and thirty-seven thousand naira] being unpaid balance on the stock released by the Claimant without authorization, it was submitted that the Claimant was a fiduciary of the Defendants [more particularly the 2nd Defendant] by reason of the fact that he had custody, charge and control of the inventory in the 2nd Defendant’s warehouse in Bauchi. Accordingly, the Claimant had a legal obligation to act in the best interest of the Defendants.  He referred to Black’s law Dictionary, 8th Edition which defined fiduciary to include one who must exercise a high standard of care in managing another’s money or property and submitted that the Claimant owed the 2nd Defendant an obligation to exercise reasonable care and diligence while performing acts that could occasion waste or loss to it. He explained reasonable care to mean a degree of care which a person of ordinary prudence would exercise in the same or similar circumstances. The cases of Kabo Air Ltd v. Mohammed [2014] LPELR-23614[CA] at page 43 and Bouygues Nig. Ltd v. O. Marine Services Ltd [2012] LPELR- 9295[CA] page 14 were referred to. He argued that not only did the Claimant in releasing the goods have a duty to comply with the provisions of sections 7.1.1 to 7.5.0 of Exhibit DW1K, he ought, as a reasonable person of ordinary prudence, to have foreseen that his failure to so comply could occasion grave loss to the 2nd Defendant. He explained that the third ingredient to be established in determining the Defendants’ entitlement to relief two of the counterclaim is whether any damage has been suffered as a result of the Claimant’s breach. In answer to this question, he referred to paragraphs 11 to 13 of the statement of defence and argued that the Claimant did not deny paragraph 13 of the statement of defence although he purported to deny paragraphs 11 and 12 in paragraph 7 of his Reply. He contended that the purported denial is no more than a negative pregnant traverse which is no traverse in law. Consequently, the averments in paragraphs 11 to 13 of the statement of defence stand unchallenged and are deemed admitted. He referred to Exhibit 5 and contended that the Magistrates’ Court merely found that the prosecution did not establish the Claimant’s guilt beyond reasonable doubt. However, nowhere in the judgment was it declared that the Claimant did not breach the Defendants’ standard operating procedure for issuance of stock. At any rate, he argued, the defence of autrefois acquit and/or issue estoppel cannot avail the Claimant in the circumstances of this case because this case is civil in nature and between different parties. He referred to PML [Nigeria] Limited v. Federal Republic of Nigeria [2017] LPELR – 43480[SC] page 55 and Eagle Transport Co. Ltd v. Anyia & Anor. [2017] LPELR-42020[CA] pages 36-37 amongst others.

Counsel submitted that the Claimant and Mr. Babatunde Richard are joint tortfeasors and to that extent, their liability for the loss of N36, 237,000.00 suffered by the 2nd Defendant is joint and several. On definition and liability of joint tortfeasors, counsel referred to Ifeanyi Chukwu [Osondu] Co. Ltd v. Soleh Boneh [Nig] Ltd [2000] 5 NWLR 322 at 249 and Eze & Ors. v. Owusoh & Anor. [1962] LPELR-25036[SC] pages 6-7. He noted that the Claimant being a stock controller and Babatunde Richard being a Globacom Business Director, were aware of the provisions of the standard operating procedure for release of stock but chose to flout it resulting in loss of over N36 million to the 2nd Defendant. He argued that the conviction of and restitution order made against Babatunde Richard does not constitute a bar to proceedings against the Claimant. He referred to Ifeanyi Chukwu [Osondu] Co. Ltd v. Soleh Boneh [Nig] Ltd [supra] and Agbanelo v. UBN Ltd [2000] LPELR–234[SC] at page 20 and concluded that the Claimant is equally liable to restore the 2nd Defendant to the position it would have been if he did not violate the standard operating procedure for release of stock; and urged the Court to grant the claim.

  1.  In response learned counsel for the Claimant raised four issues for determination in the Claimant’s final written address dated 29th October 2019 to wit:

  1. Whether from the circumstances of this case, the 1st and 2nd Defendants can be regarded as co-employers of the Claimant?

  1. Whether the indefinite suspension of the Claimant by the 2nd Defendant for over 3 years without pay amounts to unfair labour practice?

  1. Whether an employee on suspension is deemed to still be in the employment of his employer, and entitled to salaries and other entitlements until termination or dismissal?

  1. Whether the Defendant has a valid counterclaim against the Defendant in this suit?

As a preliminary point, learned counsel contended that there was no admission of the averments in the statement of defence. He referred to Unity Bank Plc v. Bouari [2008] LPELR-3411[SC] on the purpose of a reply to statement of defence and submitted that the paragraphs allegedly admitted by the Claimant did not raise any new issues but simply responded to issues raised by the Claimant in the statement of facts and need no further denial.

On issue one, he submitted that the Defendants are co-employers of the Claimant by virtue of the employment relationship that existed between the parties and the level of control and disciplinary powers exercised over the Claimant by the 2nd Defendant. He argued that in determining whether a triangular employment gives rise to co-employer relationship, the Court would always look at the relationship of the parties in the course of employment, especially whether a party has exercised sufficient control over the employee to lead to the inference of co-employership. He explained that these employer’s rights are evidenced in Exhibits 11, DW1B, 4 and DW1D; and referring to paragraph 5 of Exhibit 1, he posited that transfers and disciplinary powers are all incidences of employer-employee relationship.

He argued further that the 2nd Defendant having been directly involved in issuance of the exhibits, it is safe to say that it held itself out as a co-employer of the Claimant without prejudice to the relationship existing between the Claimant and the 1st Defendant. The case of Onumalobi v. NNPC & Anor. [2004] 1 NLLR [pt. 2] 304 was cited in support. He contended that the Defendants are one and the same and part of one large group with same Management and as such anybody employed by the 1st Defendant and seconded to the 2nd Defendant automatically fall in the category of employees with two employers. He placed reliance on Oyewunmi Oyetayo v. Zenith Bank Plc. [2012] 29 N.L.L.R [pt. 84] 370 and Union Beverages Ltd v. Pepsicola International Ltd. [1994] 2 SCNJ 157 at 180-181 and urged the Court to so hold.

  1.  On issue two, he submitted that the provision of the Labour Act and authorities cited by the Defendants in their final written address are not applicable to this case; and that the indefinite suspension of the Claimant by the Defendants without carrying out investigation within a reasonable time amounts to unfair labour practice. The cases of Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & Anor. [2013] 35 N.L.L.R [pt. 103] 40 and Lasisi Gbadegesin v. Wema Bank Plc [2012] 28 N.L.L.R [pt. 80] 274 were cited in support amongst others.

He argued that the Labour Act does not apply to the Claimant’s category of staff because the Claimant was a Regional Stock Controller/Accountant with the Defendants until his purported dismissal in 2018, a fact not denied by the Defendants. It was also argued that the Labour Act generally applies only to very junior staff, section 91[1][b] of the Labour Act which excludes “persons exercising administrative, executive, technical or professional functions” and the case of Evan Bros Nig. Ltd v. Falaiye [2003] 13 NWLR [pt. 838] 564 were relied on. Learned counsel argued further that, assuming without conceding, the Labour Act applies, section 17[1][b] deals with punitive suspension and not investigative suspension which is the case in this suit. He posited that in labour and employment jurisprudence, there are two types of suspension, namely punitive/disciplinary suspension and investigative/administrative suspension. It is punitive where it is a sanction for a proven misconduct and usually without pay. On the other hand, investigative/administrative suspension is to enable the employer investigate the alleged misconduct. Thus, unlike punitive suspension, it is not a sanction as the employee is yet to be “tried” for the alleged misconduct. The purpose is to keep the employee away from work pending conclusion of investigations. He referred to paragraph 4 of exhibit 4 and explained that the Claimant was placed on investigative suspension.

On issue three, he contended that it is an elementary principle of labour and employment law that an employee on suspension is deemed to be in employment of his employer and entitled to salaries and other benefits. The cases of Mr. Ebere Onyekachi Aloysius v. Diamond Bank Plc. [2015] 58 N.L.L.R [pt. 199] at 92 and Duru v. Skye Bank Plc [2015] 59 N.L.L.R [pt.207] were cited in support. He argued that the contract of employment does not expressly provide for suspension without pay and the Court was urged to hold that an employee on suspension is deemed to be in the employment of his employer and entitled to salaries and allowances until his employment is determined. The cases of Longe v. First Bank of Nigeria Plc [2010] 2-3 SC [pt. 111] 61 and Bamisile v. National Judicial Council [2013] ALL FWLR [pt. 678] 911 at 942 were referred to amongst others.

  1.  On issue four, learned counsel submitted that the counterclaim is misconceived and an attempt to re-open a concluded case. He explained that a court of law has ruled on the said sum and held someone responsible for payment of the amount counterclaimed against the Claimant. He pointed out that the Defendants struggled in vain to explain that the case before the Magistrate was for fraud and different from the misconduct in respect of which the Claimant was dismissed insisting that the Claimant was dismissed for alleged “fictitious release of stock without authorization” and this formed the basis of the Defendants’ complaint at the Bauchi Magistrate Court which produced exhibit 5. He submitted that it is trite that a person cannot be tried twice for an offence or an offence having the same ingredients. More so, the Defendants hinged their case in the Magistrates’ Court on the fact that the Claimant misappropriated stocks without authorization which fact the Claimant denied. He referred to page 5 of exhibit 5 and queried whether the Claimant is a joint-tortfeasor and whether this court has jurisdiction over actions on tort?

To answer this question, learned counsel sought sanctuary in the case of Dickson & Anor. v. Assamudo [2013] LPELR-20416[CA] which defined a tortfeasor as one who commits a tort, a wrongdoer; and when two or more tortfeasors who contributed to the claimants’ injury are joined as defendants in the same law suit, they are called joint tortfeasors, and concluded that the Claimant cannot be said to be a joint tortfeasor as he is not sued with any other person and has not committed any tort against the Defendants whether alone or with anyone else. Continuing, learned counsel argued that, assuming without conceding, the Claimant committed a tort against the Defendants and qualifies as a tortfeasor, then the validity of the action against the Claimant alone is questionable and relied on Ogbonnaya & Anor v. Mbalewe [2004] LPELR-5878[CA]. It was further argued that assuming the Defendants can maintain an action in tort against the Claimant it is important to determine whether this court has jurisdiction over same. He answered the question in the negative and referred to the cases of Akinyemi v Crawford University [2011] 22 NLLR [pt. 61] 90 at 10 and Oyebanji Julius Odeniyi & 11Ors v. Shell Petroleum Development Company of Nigeria Limited. Applying the latter case, he asked which legal rule would apply in resolving the issue canvassed by the Defendants in this suit and answered the law of tort. Referring to Section 254C of the Constitution of the Federal Republic of Nigeria, he argued that the Court does not have jurisdiction over tort and urged the Court to discountenance the argument of the Defendants.

  1.  The Defendants reply on points of law is largely a rehash of its final written address. In response to the Claimant’s argument on section 17[1][b] of the Labour Act, learned counsel for the Defendants submitted that it is an established rule of statutory construction that where a legislative provision creates a proviso, the onus of proving applicability of the exception on balance of probabilities lies on the person seeking the exception but cited no authority in support of this proposition. He submitted that the facts forming the basis of the decision in Evan Bros Nig. Ltd v. Falaiye [supra] at page 579 are distinguishable from this case in that Mr. Falaiye was a Deputy General Manager at the time, while the Claimant presented no evidence to show that his position as Stock Controller entailed performance of administrative, executive, technical or professional functions.

He argued that the passage from Ogbonnaya & Anor. v. Mbalewe [supra] was quoted out of context. Learned counsel referred to pages 9-15 of the report and submitted that the case is fatal to the Claimant’s argument in that it held that joint tortfeasors may be sued separately and if judgment against one is unsatisfied, the aggrieved party can proceed against the other tortfeasor. On the jurisdiction of this Court to entertain the counterclaim, he submitted that from pleaded facts and reliefs sought, the cause of action is breach of the Claimant’s duty of care in the course of his employment occasioning severe loss; which puts the claim squarely within the jurisdiction of the Court and referred to section 7, National Industrial Court Act, 2006 and section 254 of the Constitution of the Federal Republic of Nigeria 1999. He finally contended that the Claimant’s submission that this Court does not have jurisdiction over actions founded on tort is erroneous as it was acknowledged in the case of Oyebanji Julius Odeniyi & 11Ors v. Shell Petroleum Development Company of Nigeria Limited that the Court would assume jurisdiction over tort cases where it requires application of employment law rules for resolution of issues in dispute.

  1.  I have carefully read the processes filed in this suit and considered the issues for determination formulated by learned counsel for the parties and, in my respectful view, the nine issues for determination can be subsumed under two broad issues for determination to wit:

  1. Whether the Claimant has proved his case to entitle him to judgment?

  1. Whether the Defendants are entitled to judgment on the counterclaim?

It is elementary law that requires no citation of authority that he who asserts must prove. See section 131[1] of the Evidence Act, 2011 and the case of Nduul v. Wayo & Ors. [2018] 7 SC [pt.111] 164 at 212. To determine who has the burden of initial proof, section 131[2] of the Evidence Act, 2011 provides:

“[2]    When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

Then section 132 of the Evidence Act, 2011 adds thus:

“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

It becomes evident, therefore, that the Claimant who initiated the suit on a set of facts which he claims entitles him to judicial relief has the burden of: first, establishing those facts and secondly, establishing that those facts entitle him to the reliefs he seeks. This is what is often referred to as a prima facie case. It is only when the Claimant makes out a prima facie case that the burden now shifts to the Defendants to adduce counter evidence to sustain their defence. See Nduul v. Wayo & Ors. [supra]. Where the Claimant fails to make out a prima facie case there will be nothing for the Defendants to rebut and the case will be dismissed. See Okomu Oil Palm Company Limited v. O. S. Iserhienrhien [2001] 6 NWLR [pt.710] 660 at 674.

Where a Claimant, as in this case, seeks declaratory reliefs, he has the onerous burden to prove his entitlement to those reliefs. Evidence which will support a legal right must be overwhelming, total, convincing and credible. The Claimant must succeed on the strength of his case and not on the weakness of the defence. See Jikantoro & Ors. v. Dantoro & Ors. [2004] 5 SC [pt.11] 1 at 15. It must be noted, however, that the standard of proof remains the same, that is, proof on a balance of probabilities. The Claimant is only required to show that the law and facts of his case support his claims and cannot rely on mere admission of the Defendants or absence of defence. See Dr. Kenneth Ojo v. ABT Associates Incorporated & Anor. [2014] LPELR-22860[CA] at page 25. Augie, J.S.C., puts it succinctly in Adama & Ors. v. Kogi State House of Assembly & Ors. [2019] 16 NWLR [pt.1699] 501 at 531 thus:

“The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence.”

The rationale for this position of the law is that a claim for declaratory reliefs calls for the exercise of the Court’s discretionary powers in favour of the Claimant. Therefore, the Claimant must place sufficient materials before the Court to enable it exercise the discretion in his favour. See Nduul v. Wayo & Ors. [supra] at page 213.

On what a credible evidence is, the Court of Appeal in In-Time Connection Limited v. Mrs. Janet Ichie [2009] LPELR-8772[CA] at page 16, posited that credible evidence means evidence worthy of belief and for evidence to be worth of belief it should be natural, reasonable and probable in view of the entire circumstances of the case.

  1. In proof of his case, the Claimant testified for himself and stated that he is a Chartered Accountant and was until his purported summary dismissal on 20th August 2018, a regional stock controller/accountant with the 1st Defendant which is a subsidiary of the 2nd Defendant. He was employed by the 1st Defendant by letter dated 28th February 2008 on Specialist Grade with initial posting to Warehouse/Distribution and resumed on 3rd March 2008 in Lagos. The letters of employment and dismissal were admitted in evidence and marked as exhibits 1 and 7. He stated that in furtherance of paragraph 5 of his letter of employment, he was at different times seconded to the 2nd Defendant. As stock controller/accountant, his responsibility was to receive and keep stocks and document sales and he had unblemished record with the Defendants since 2008 resulting in his transfer to head different units in Yola and Bauchi State and his monthly salary as at March 2015 was N547, 072.03 which was paid through his Sterling Bank account. On 22nd February 2014, one Richard Babatunde, the business director, head of sales and administrative head of 2nd Defendant’s office in Bauchi State approached him for stock worth N50, 000,000 for and on behalf of Greenfield Limited. With the approval of Prince Dimkpa, the Divisional Director, North-East he released the stock to Richard Babatunde who promised to pay within two weeks and he documented it. Richard Babatunde defaulted. He informed Prince Dimkpa who told him he was investigating the matter but, dissatisfied with the response, he put pressure on Richard Babatunde who eventually paid N15, 030,000 leaving a balance of N34, 936,250. A cheque issued by Richard Babatunde for the sum of N34, 936,250 was returned unpaid. He was placed on indefinite suspension without pay from 30th March 2015 until his dismissal on 20th August 2018, arrested, prosecuted but discharged and acquitted. A complaint was also made to Institute of Chartered Accountants of Nigeria against him but the Institute in the Accountants Investigating Panel’s report dated 28th April 2017, found that he did not breach the Institute’s Rules of Professional Conduct and Guide for members. According to him, the travails subjected him to untold hardship, financial embarrassment, unquantifiable emotional and psychological trauma. He caused his Solicitors to write to the 2nd Defendant for reinstatement and payment of outstanding salaries on 27th September 2016, 1st June 2017 and 19th January 2018 but received no response instead he was dismissed. Wherefore, he seeks the reliefs contained in his statement of facts. The Claimant’s Sterling Bank statement of account, copy of the cheque, letter of indefinite suspension, judgment of the Magistrate Court of Bauchi, report of Accountants’ Investigating Panel, Solicitors letters dated 27th September 2016, 1st June 2017, 19th January 2018 and transfer letter to Yola were admitted in evidence and marked as exhibits 2, 3, 4, 5, 6, 8, 9, 10 and 11 respectively. In his further statement on oath, he stated that the Defendants are his joint/co-employers as he was employed by the 1st Defendant and seconded to the 2nd Defendant who exercised all forms of control over him including transfers and discipline. He denied saying he colluded with Babatunde Richard, Prince Dimka, Kazeem Olusola Bello or any other person but as a mark of good faith cooperated with the Defendants to arrest Babatunde Richard and, prior to his arrest and prosecution, he was not aware of the fraudulent activities of Babatunde Richard and Kazeem Olusola. He stated that the Defendants had determined to suspend him before issuing him a query. Copy of the query was admitted in evidence and marked as exhibit 12.

Under cross-examination he stated that his dismissal was after conclusion of his trial and ICAN investigation. He also stated that he was not suspended because he released stock without proper documentation insisting that he released the stock on instruction of Prince Dimkpa but did not produce the instruction in this Court because it was tendered during his trial at the Magistrate’s Court. He was shown exhibits 5 and 6 and he confirmed that there is nowhere in the judgment or the Accountants’ Investigating Panel’s report that he was exonerated from breach of the 2nd Defendant’s standard operating procedure because the offence alleged against him was stealing and not breach of standard operating procedure. He was referred to paragraphs 15-19 of his statement on oath dated 15th October 2018 and he confirmed that he made oral report about facts stated therein to the National Sales Director before the missing stock was discovered during a stock audit. He admitted that he did not conduct a search at the Corporate Affairs Commission before concluding in paragraph 4 of his further statement on oath that the 1st Defendant is a sham and a shell company with no assets whatsoever because it is what everybody knows.

  1.  The first sub-issue to be determined is the status of the Claimant. This forms the kernel of his first issue for determination. His counsel’s submission on this point has been summarised above. Suffice to say that he argued that the Defendants are Claimant’s co-employers due to the employment relationship which existed between the parties and level of control and disciplinary powers wielded by the 2nd Defendant. He cited a number of authorities in support but learned counsel for the Defendants did not counter this argument.

The law is settled that where a party fails to counter any argument on an issue validly raised by the opponent, he is deemed to have conceded the issue. See Nwankwo & Ors. v. Yar’Adua & Ors. [2010] 3-5 S.C. [pt. III] 1 at 23 and Donbraye & Anor. v. Preyor & Ors. [2014] LPELR-22286[CA] page 70. Thus, the Defendants are deemed to have conceded the issue. I will, therefore, not belabour the issue except to add that the concept of co-employer is now firmly entrenched in our labour jurisprudence. This means that a party could be held to be an employee of two companies and the employment rights and obligations become enforceable against either or both companies. The Court of Appeal gave life to this principle in Donatus I. Onumalobi v. Nigerian National Petroleum Corporation & Anor. [2004] 1 NLLR [pt.2] 304 at 323-324; which decision was followed by this Court in Oyewumi Oyetayo v. Zenith Bank Plc [2012] 29 NLLR [pt.84] 370 at 420.

I therefore return the answer to Claimant’s first issue in the affirmative.

The next question is the effect of Claimant’s indefinite suspension without pay from 30th March 2015 until his dismissal on 20th August 2018 on his contract of employment. This forms the thrust of Claimant’s issues two and three and Defendants’ issue two. In arguing this issue, learned counsel for the Defendants queried whether, in view of the settled facts of this case, the Claimant’s indefinite suspension without pay imposed as a disciplinary measure for his admitted breach of the Defendants’ standard operating procedure amounts to unfair labour practice? He referred to the cases of University of Calabar Teaching Hospital & Anor. v. Juliet Koko Bassey [supra] and Udemah v. Nigeria Coal Corporation [supra] amongst others on the definition and nature of suspension and an employer’s power to suspend an errant employee and submitted that from judicial authorities indefinite suspension and suspension as a disciplinary measure cannot be described as unfair labour practice, more so when the misconduct for which Claimant was suspended occasioned massive loss to the 2nd Defendant. He contended that as stock controller, Claimant was to ensure compliance with the 2nd Defendant’s standard operating procedure for release of stock and obtain requisite authorization before releasing any stock; and his suspension was as a result of his deliberate non-compliance with the standard operating procedure. He referred to paragraphs 4, 5, 6 and 7 of the Statement of Defence and argued that these averments were not denied and are deemed admitted as true. Order 30 Rule 6[1] of Rules of this Court and the case of Joshua Ogunleye v. Babatayo Oni [supra] was cited in support. On the effect of an employee’s suspension on his wages, learned counsel referred to Longe v. FBN. Plc [supra] and contended that having been suspended for gross misconduct and disregard of constituted business process which he admitted, the Claimant falls squarely within the proviso to Section 17[1][b] of the Labour Act and, accordingly, is not entitled to salaries for the duration of his suspension.

On his part, learned counsel for the Claimant argued that the provision of the Labour Act and authorities cited by the Defendants do not apply to this case in that section 91[1][b] of the Labour Act excludes “persons exercising administrative, executive, technical or professional functions” and referred to Evan Bros Nig. Ltd v. Falaiye [supra]. He argued further that, assuming without conceding, the Labour Act applies, section 17[1][b] deals with punitive suspension and not investigative suspension; and concluded that the Claimant’s indefinite suspension without investigation within a reasonable time amounts to unfair labour practice. He referred to Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & Anor. [supra] and Lasisi Gbadegesin v. Wema Bank Plc [supra]. He equally argued that an employee on suspension is deemed to be in employment of his employer and entitled to salaries and other benefits and relied on Mr. Ebere Onyekachi Aloysius v. Diamond Bank Plc. [supra] and Duru v. Skye Bank Plc [supra].

  1.  This case is anchored on the legal effect of Claimant’s indefinite suspension without pay. Suspension basically means to pause, to stop from acting for some time, to delay or place on hold temporarily usually to enable the initiator carry out an investigation or determine his next line of action. The word ‘suspension’ has received judicial interpretation in a plethora of cases and learned counsel on both sides have ably referred to some of them in support of their respective positions. I will briefly review a few of them. The first case is Longe v. First Bank of Nig. Plc [supra] which counsel on both sides relied on. Oguntade, J.S.C., who delivered the leading judgment, at page 94 of the law report, quoting with approval the Court of Appeal decision in University of Calabar v. Esiogu [1997] 4 NWLR [pt.502] 719 at 723 explained the effect of suspension thus:

“The word ‘suspension’ means a temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victims or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing discipline. Although in most cases, suspension results in a disciplinary action, it is not invariably so. There are instances when the authority decides not to continue with the matter. This could be because the investigations did not result in any disciplinary conduct.”

The learned law lord continued at page 95, thus:

“I think, with respect, that the Court below completely misunderstood the import of suspension. Admittedly, an employer suspending his employee may impose terms of the suspension but in a general sense suspension of an employee from work only means the suspension of the employee from performance of the ordinary duties assigned to him by virtue of his office. Suspension is not a demotion and does not entail a diminution of rank, office or position. Certainly, it cannot import a diminution of the rights of the employee given to him under the law.”

In his contributory judgment, Adekeye, J.S.C, at pages 129-130 of the report, had this to say:

“Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee, but while there is neither work being done in pursuance of it nor remuneration being paid. 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.…It appears that 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. It is usually a step taken in the interest of the employer’s business.”

In an earlier case of Mobil Producing Nig. Unlimited & Anor. v. Udo Tom Udo [2008] LPELR-8440[CA] at pages 75-77, Orji-Abadua, J.C.A., in his contributing judgment posited, inter alia:

“Whether the employer has the power to suspend the employee for misconduct depends upon the terms of the particular contract of employment. Suspension will be wrongful on the part of the employer if there is no power to suspend given by the contract; in such a case the employee – may sue for wages he has lost by being suspended. …Also, in the instant case there is no evidence before the trial Court that there were laid down conditions between the parties stating clearly the right of the 1st Appellant to suspend the Respondent without pay. The 1st Appellant did not tender through DW2 any document embodying such conditions of service. What it amounts to is that the 1st Appellant did not possess the right under the said contract of employment to suspend the Respondent indefinitely without pay. Chitty on Contracts is very explicit on this saying that there is no implied contractual right on the part of the employer to suspend employees without pay on disciplinary grounds. For there to be no pay, it must be expressly stated in the contract agreement of the parties.”

Also, in Shell Petroleum Development Co. Nig. Limited v. Emehuru [2006] LPELR-7728[CA] page 37, Dongban-Mensem, J.C.A., observed thus:

“When an employee is placed on suspension, he is placed on hold; he lives day by day in anticipation of either being recalled or being laid off. He is not at liberty to utilize his time elsewhere nor as he desires until after closing hours. This was the exact disability placed on the respondent by the terms of exh. P2, the letter of suspension from duty dated the 7th June, 1994. …To have kept an employee on suspension for that long is in fact what is unjustified, cruel and unduly oppressive.”

The Court of Appeal reviewed the above decisions in Miaphen v. University of Jos Consultancy Limited [2013] LPELR-21904[CA] at pages 33-34, and held, per Bdliya, J.C.A., thus:

“…the appellant can only be entitled to general damages if his suspension by the respondent was unlawful and unwarranted. An employer has a right to suspend any of his or its staff if there exists reasonable ground to do so.”

In Gbadegesin v. Wema Bank Plc [supra] at pages 305-306, a Panel of this Court held:

“…we must state that an employee should not be kept under suspension indefinitely without initiating and concluding disciplinary proceedings against him as this puts him under undue hardship and makes it impossible for him to seek some other employment. … 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.”

Lastly, in Adekunle v. United Bank for Africa Plc [2016] LPELR-41124[CA] page 62, an appeal from a decision of this Court, the Court of Appeal, per Okoronkwo, J.C.A., had this to say:

“Suspension in contracts of employment operates to suspend the contract rather than terminate the contractual obligation of the parties. It is a step taken in the interest of the employer’s business when certain issues of misconduct are being looked into and where the misconduct is proved, suspension consequent upon it, in my view relates back to the date of the misconduct.”

The decision of this Court that the appellant was entitled to all his entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office was upheld.

  1.  What appears from these cases can be summarized thus:

  1. An employer has a right to discipline its errant employee and suspension is an aspect of discipline. However, before the employer can resort to suspension as a form of discipline, the right to do so must be reserved in the contract of employment. Where the contract of employment does not provide for suspension, the employer cannot suspend the employee; as doing so, in my view, will amount to a unilateral variation of the contract of employment.

  1. An employee on suspension remains in the employment of the employer because suspension does not import termination or dismissal.

  1. Where there is no right to suspend, an employee on suspension will be entitled to his salaries for the period of suspension.

  1. Suspension without pay, even where the right is reserved in the contract of employment, amounts to an unfair labour practice because during this period the employee’s life is on hold. He lives day by day in anticipation of either being recalled or being laid off. He is not at liberty to utilize his time elsewhere or as he desires and it will be grossly unfair to stagnate a person and still refuse to pay him.

Applying the above principles to this case, it is evident from exhibit 1, the letter of appointment, that there is no term in the contract of employment empowering the Defendants to suspend the Claimant indefinitely without pay. Also, exhibit 4, the letter of indefinite suspension made no reference to any provision in the contract authorizing the Defendants to suspend the Claimant indefinitely. I have looked at the 2nd Defendant’s standard operating procedure, exhibit DW1K. There is no procedure for discipline of employees who breach the standard operating procedure and the effect of breach is equally not stated. In Adekunle v. United Bank for Africa Plc [supra] at page 20, Tsammani, J.C.A., posited that:

“… in an employer/employee dispute, it is the applicable conditions of service or any other terms stipulated in the contract that must be referred to, construed and applied in the resolution of the dispute between the parties.”

Earlier, in Mobil Producing Nig. Unlimited & Anor. v. Udo Tom Udo [supra] at page 75, Orji-Abadua, J.C.A., held that:

“Whether the employer has the power to suspend the employee for misconduct depends upon the terms of the particular contract of employment. Suspension will be wrongful on the part of the employer if there is no power to suspend given by the contract; in such a case the employee – may sue for wages he has lost by being suspended.”

In Longe v. First Bank of Nig. Plc [supra] at page 130, Adekeye, J.S.C., held that 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. However, learned counsel for the Defendants submitted that having been suspended on grounds of gross misconduct and disregard for constituted business process which the Claimant admitted, the Claimant falls squarely within the proviso in Section 17[1][b] of the Labour Act and, accordingly, he is not entitled to salaries for the duration of his suspension. Learned counsel for the Claimant argued otherwise and tried to draw a distinction between disciplinary suspension and investigative suspension. In my respectful view, this distinction is cosmetic. The settled judicial position is that suspension, whether for a fixed or indefinite period, investigative or disciplinary, is a transient disciplinary procedure which keeps the employee away from his regular occupation or calling to allow the initiator decide on the next course of action. See National Judicial Council & Ors. v. Aladejana & Ors. [2014] LPELR-24134[CA] page 36.

I have closely examined Section 17[1][b] of the Labour Act and, in my considered opinion, it does not apply to this case. The Court is enjoined to avoid an interpretation of a statute that will lead to absurdity. See Labour Party v. INEC [2011] LPELR-4416[CA] page 35. The interpretation placed on that section by learned counsel for the Defendants will certainly lead to absurdity since that is not the intention of the legislature. As the heading indicates, Section 17 deals with employer’s duty to provide work and the consequences of his failure to do so. It does not provide for suspension. The reference to suspension in subsection [1][b] merely delimits the application of the section and does not in any way authorize employers to suspend their employees or not to pay salaries to employees on suspension. In other words, it does not obviate the necessity to reserve the power to suspend in the contract. I admit that it is a cardinal rule of interpretation of statutes that a heading cannot control the plain words of a statute, however, headings can be relied upon to clarify ambiguity. See Oyo State Board of Internal Revenue v. University of Ibadan [2013] LPELR-22151[CA] page 15. I am of the firm view that the circumstance of this case dictates such reliance. For ease of understanding, Section 17[1] is reproduced here.

“17.    Duty of employer to provide work

[1]      Except where a collective agreement provides otherwise, every employer shall, unless a worker has broken his contract, provide work suitable to the worker’s capacity on every day (except rest days and public holidays) on which the worker presents himself and is fit for work; and, if the employer fails to provide work as aforesaid, he shall pay to the worker in respect of each day on which he has so failed wages at the same rate as would be payable if the worker had performed a day’s work:

Provided that –

[a]      where, owing to a temporary emergency or other circumstances beyond the employer’s control (the period of which shall not exceed one week or such longer period as an authorised labour officer may allow in any particular case), the employer is unable to provide work, the worker shall be entitled to those wages only on the first day of the period in question; and

[b]      this subsection shall not apply where the worker is suspended from work as a punishment for a breach of discipline or any other offence.”

The submission of learned counsel is therefore misconceived. Clearly, the indefinite suspension of the Claimant without pay has no legal or contractual basis and is therefore wrongful.

  1.  I will now proceed to consider the reliefs sought by the Claimant. Relief one seeks a declaration that the Claimant was in the employment of the 1st Defendant until his purported dismissal on 20th August 2018. There is evidence that the Claimant was on suspension from 30th March 2015 until his summary dismissal on 20th August 2018, exhibits 4 and 7 and paragraph 26 of the Claimant’s statement on oath dated 15th October 2018. This evidence was not challenged in any way. The preponderance of judicial opinion points irresistibly to the fact that an employee on suspension remains in the service of the employer. See Gbadegesin v. Wema Bank Plc [supra] and Longe v. First Bank of Nig. Plc [supra] to mention a few. Based on the evidence and the position of the law, I find and hold that the Claimant has established his entitlement to the declaration sought. Relief one therefore succeeds.

  1.  Relief two is for a declaration that the Claimant’s indefinite suspension without pay for over 3 years is an unfair labour practice. The facts in support of this relief are pleaded in paragraphs 24, 25, 27 and 28 of the statement of facts. This was reproduced in paragraphs 26, 27, 29 and 30 of Claimant’s statement on oath dated 15th October 2018. The Defendants’ response is in paragraphs 19, 20 and 21 of the statement of defence, which was reproduced in paragraphs 18, 21 and 22 of the Defendants’ witness’ statement on oath dated 9th January 2019. For sake of emphasis, paragraphs 21 and 22 are reproduced here.

“21.    The suspension of the Claimant was a disciplinary measure as a result of the Claimant’s deliberate and flagrant violation of the Defendants’ standard operating procedure for the issuance of stock as verbally admitted by the Claimant during questioning and subsequently affirmed via the Claimant’s email of April 18, 2015.”

“22.    Having been placed on suspension for breaching the Defendants’ standard operating procedure for the issuance of stock, the Claimant was not entitled to any salaries during the period of his suspension.”

The Defendants, in addition, tendered exhibits DW1E and DW1G, which are Claimant’s answers to the query served on him. I have carefully examined exhibits DW1E and DW1G which are exactly the same thing, and therein the Claimant admitted releasing the stock ‘unauthorised’. However, nowhere in exhibits DW1E and DW1G and the query, exhibit DW1D, was reference made to the Defendants’ standard operating procedure for the issuance of stock. This issue was only raised in exhibit DW1C [exhibit 4]. Nevertheless, while the Claimant’s conduct is sufficient to initiate disciplinary proceedings against him, there is nothing in the contract of employment, exhibit 1 or the standard operating procedure, exhibit DW1K empowering the Defendants to suspend the Claimant indefinitely without pay. Clause 12 of exhibit 1 gives either party power to terminate the employment by sixty days written notice to the other. It is trite law that in a dispute between an employer and employee, it is the conditions of service or other terms stipulated in the contract that must be referred to. See Adekunle v. United Bank for Africa Plc [supra]. The Court of Appeal in Mobil Producing Nig. Unlimited & Anor. v. Udo Tom Udo [supra] posited that:

“Whether the employer has the power to suspend the employee for misconduct depends upon the terms of the particular contract of employment. Suspension will be wrongful on the part of the employer if there is no power to suspend given by the contract; in such a case the employee – may sue for wages he has lost by being suspended.”

There are no such terms in this contract of employment. The Defendants do not have an implied power to suspend the Claimant whether indefinitely or for a fixed period. In the circumstance, the suspension of the Claimant for such a long period of time, about 41 months, is wrongful. In the words of Dongban-Mensem, J.C.A., in Shell Petroleum Development Co. Nig. Limited v. Emehuru [supra], to have kept the Claimant on suspension for that long is unjustified, cruel and unduly oppressive. Accordingly, I hold that the Claimant’s indefinite suspension without pay for over 3 years is an unfair labour practice. Relief two therefore succeeds.

  1. Relief three is for an order of Court directing the Defendants to pay the Claimant, the sum of N21, 882,881.02 [twenty-one million, eight hundred and eighty-two thousand, eight hundred and eighty-one naira, two kobo] only being his total outstanding salaries from April 2015 to August 2018. The weight of judicial authorities is to the effect that where suspension is held to be wrongful, the employee will be entitled to wages for the duration of his suspension. See Mobil Producing Nig. Unlimited & Anor. v. Udo Tom Udo [supra], Gbadegesin v. Wema Bank Plc [supra] at page 307 and Adekunle v. United Bank for Africa Plc [supra]. However, the grant of such relief is not automatic especially where one of the claims is for payment of outstanding salaries. A claim for salaries and allowances is in the nature of special damages and must be specially pleaded and strictly proved. Where particulars are not given and evidence is not led, the claim is bound to fail. See Adekunle v. United Bank for Africa Plc [supra] page 36.

I have looked at the 34 paragraphs statement of facts and cannot find any pleading in support of this claim and, consequently, there is nothing in the Claimant’s depositions to substantiate the claim. In paragraph 10 of the statement of facts, the Claimant averred thus:

“10.    The Claimant states that his monthly salary as at March 2015 was N547, 072.03 [five hundred and forty-seven thousand, seventy-two naira, three kobo] per month. The Claimant pleads and shall rely on documentary evidence showing his monthly salary especially his Sterling Bank Account Statement with Account No. 0011091733, where his monthly salaries are customarily paid into.”

This averment was reproduced in paragraph 12 of Claimant’s statement on oath. In furtherance thereof, exhibit 2 was tendered. It is settled law that a document is tendered in proof of a fact pleaded. See Brawal Shipping [Nigeria] Limited v. F. I. Onwadike Co. Limited & Anor. [2000] LPELR-802[SC] page 20, where Uwaifo, J.S.C., observed that:

“… when a document is pleaded, it forms part of the pleading. Certainly, a document is pleaded in order that it may be used to support facts relied on by the pleader. The existence of such document is thereby pleaded as a fact. The contents thereof are facts and are pleaded as such. The document will then at the appropriate time in the proceedings be tendered as the evidence in proof of those facts.”

See also Adekunle v. United Bank for Africa Plc [supra] page 41. Clearly, exhibit 2 was tendered to prove the averment in paragraph 10 of the statement of facts, which is that the Claimant’s salary is N547, 072.03 and it is paid through his Sterling Bank Plc account. There is no averment that his outstanding salaries is N21, 882,881.02 or any other sum. The basis of computation of this amount was equally not stated. The Claimant did not lead any evidence in support of the amount claimed. There is a difference between pleading and reliefs, see Matthew Iyeke & Ors. v. Petroleum Training Institute & Anor. [2019] 2 NWLR [pt.1656] 217 at 240. As a matter of law, every pleading must contain a statement of all material facts which a party bases his claim. Pleading is a delicate art, which requires considerable tact, effort and circumspection. Counsel settling a pleading should be painstaking and ensure that pleaded facts support the case the party is making and not take anything for granted. See Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] LPELR-2574[SC] page 31 and Alfa System Company Ltd. & Ors. v. Orisajimi & Ors. [2016] LPELR-40295[CA] pages 35-36.

It is the duty of every court of law to render to everyone according to his proven claim. This Court cannot give to a party a relief which he has not proved. See In-Time Connection Limited v. Mrs. Janet Ichie [2009] LPELR-8772[CA] page 24. While the Claimant is ordinarily entitled to his outstanding salaries for the period of suspension, he did not plead facts and did not adduce evidence to substantiate the sum claimed.  This is so notwithstanding Claimant’s Solicitors’ letters of 1st June 2017 and 19th January 2018, exhibits 9 and 10 where a certain sum of money was claimed. The amount claimed as salaries and allowances are material facts which must be specifically pleaded and proved. Consequently, this relief fails. See Adekunle v. United Bank for Africa Plc [supra].

  1. The next relief is for 18% [eighteen percent] compound interest on the said outstanding salaries of N21, 882,881.02 [twenty-one million, eight hundred and eighty-two thousand, eight hundred and eighty-one naira, two kobo] only until same is fully paid. The law on award of pre-judgment interest is well settled and, for emphasis, interest may be awarded in two distinct circumstances, namely: as of right and where there is a power conferred by statute to do so in the exercise of the court’s discretion. Interest may be claimed as of right where it is contemplated by the agreement between the parties, under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship. Where interest is claimed as a matter of right, the proper practice is to claim entitlement to it in the originating process and plead facts which show such entitlement. See Interdrill Nigeria Ltd. & Anor. v. United Bank for Africa Plc [2017] 13 NWLR [pt.1581] 52 at 72-73. Although interest was claimed in the originating processes, there are no facts in support of the claim for interest in the statement of facts and Claimant’s depositions.

            Be that as it may, this claim is based on the grant of relief three, which is the principal relief. As rightly argued by learned counsel for the Defendants, it is trite law that where a principal claim fails, any ancillary claim must also fail. See Atunka & Anor v. Aboki & Anor. [supra]. The claim for award of compound interest has not been made out and accordingly fails.

  1. Relief five is for the sum of N10, 000,000 [ten million naira] damages against the Defendants for unfair labour practice and the attendant agony, mental, emotional and psychological trauma suffered by the Claimant. This claim flows from relief 2 above. The facts in support of the claim for damages are contained in paragraphs 25, 26 and 27 of the statement of facts, which were denied by the Defendants in paragraph 20 of the statement of defence. Nevertheless, the law is that general damages need not be specifically pleaded or proved. It arises from the inference of law and it suffices if it is generally averred. Its award is presumed by law to be the direct and probable consequence of the wrongful act of the adversary. See Andrew v. MTN Nigeria Communications Limited [2016] LPELR-41181[CA] page 12.

Learned counsel for the Claimant did not canvass argument in support of the claim for general damages. Mr. Odoemelam argued that damages are only awarded where the Claimant proves that he suffered some injury due to an act or omission of the Defendants. The Claimant failed to so prove hence he is not entitled to damages. Counsel further argued, assuming without conceding, that the Claimant indeed suffered any trauma and agony as alleged, the question is whether the Claimant did not bring the injury upon himself? He noted that the Claimant is the architect of his misfortune and if he comes to equity he must come with clean hands.

The law is trite that where there is a wrong, there must be a remedy. See Ogbolosingha & Anor. v. Bayelsa State Independent Electoral Commission & Ors. [2015] LPELR-24353[SC] page 43. This is the cornerstone of any system of justice. Having found that the indefinite suspension of the Claimant for more than three years without pay constitutes an unfair labour practice, it goes without saying that there must be a remedy for this wrong. General damages are within the discretion of the Court to grant and is awarded to assuage a loss caused by the act of the adversary. See Cameroon Airlines v. Otutuizu [2011] LPELR-827[SC] page 31 and Dauda v. Lagos Building Investment Co. Ltd. & Ors. [2010] LPELR-4024[CA] pages 19-20. In the latter case, Galinje, J.C.A. [as he then was], pointed out that:

“General damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the Defendant’s act, and its quantum need not be pleaded or proved as it is generally presumed by law.”

Commenting on the measure of general damages, the Court of Appeal, in Mobil Producing Nig. Unlimited & Anor. v. Udo Tom Udo [supra] page 54, observed that:

“Now, the measure of general damages in terms of money is a matter for the Judge. It is always necessary for the Judge to make his own assessment of the quantum of such damage. General damages unlike special damages are generally incapable of substantially exact calculation.”

However, in C.C.C. Construction Nigeria Limited v. Richard Okeke [2016] LPELR-40928[CA] page 16, Pemu, J.C.A., relying on Rookes v. Bernard 1964 A.C. 1129, posited that:

“Moreover, it is very well settled that in cases where damages are at large, the jury [or the Judge if the award is left to him] can take into account the motive and conduct of the defendant where they aggravate the injury done to the Plaintiff. These may be malevolence or spite or the manner of committing the wrong, may be such as to injure the plaintiff’s proper feelings of dignity and pride. These are matters which the jury can take into account in assessing appropriate compensation.”

Flowing from the above, I have looked at the course of events since discovery of the ill-fated transaction by the Defendants. The Claimant was suspended indefinitely without pay, queried and answered the query, arrested and detained for over seven days, see exhibits 5 and 6; prosecuted for about 18 months and concomitantly faced investigation with the Institute of Chartered Accountants of Nigeria and had to traverse between Bauchi and Lagos until both matters were disposed of. In spite of these, the Defendants refused to reinstate him or pay his salaries or dispense with his services. His life was, so to speak, brought to a halt for nearly 41 months. Notwithstanding the misconduct, I consider the treatment meted to the Claimant unduly oppressive. In the peculiar circumstances of this case, it is only reasonable that the Claimant should be entitled to general damages and I so hold. The sum of N3, 500,000 [three million, five hundred thousand naira] is awarded in favour of the Claimant against the Defendants as general damages for unfair labour practice.

  1.  The next relief is for N1, 000,000 [one million naira] against the Defendants being cost of this suit. The Claimant did not urge anything on the Court in support of the claim for costs. Learned counsel for the Defendants urged the Court to refuse the prayer for cost of the action on the ground that relevant facts were not placed before the Court; and costs being in the nature of special damages must be specifically pleaded and strictly proved.

It is the law that costs follow the events in litigation and as such, a successful party is entitled to costs unless there are special reasons to deprive him of costs. See Jaiyeola v. Abioye [2002] LPELR-7169[CA] at page 28. Indisputably, award of cost is within the discretion of the Court which must be exercised judicially and judiciously. See Order 55 rules 1 and 4 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017. Order 55 rule 5 provides that “in fixing the amount of costs, the principle to be observed is that the successful party is to be indemnified for the expenses to which the party has been unnecessarily put in the proceedings.”

A fundamental rule of interpretation of statutes is that words used in a statute should be given their ordinary meaning. To do this one has to look at the words of the statute carefully. See Ojokolobo & Ors. v. Alamu & Anor. [1987] LPELR-2392[SC] page 12. Two key phrases stand out in this provision: ‘successful party’ and ‘indemnified for the expenses to which the party has been unnecessarily put in the proceedings’. The Black’s Law Dictionary, 10th Edition, at page 1298 defines a ‘successful party’ as a ‘prevailing party’ which means a party in whose favour judgment is rendered. To indemnify was also defined at page 886 as to ‘reimburse another for a loss suffered because of a third party’s or one’s own act or default’.

In addition, costs fall into two broad categories namely: necessary expenses in the proceedings made by a party and cost in terms of the litigant’s time and effort in coming to Court. The former category includes filing fees and Solicitors’ fees which is akin to special damages that must be specifically pleaded and strictly proved. They are easily ascertainable by producing receipts and fee notes. That is why Order 55 rule 5 classifies it as ‘expenses’. The latter category is for the litigant’s time and effort in coming to Court. Under this category the Court usually takes the circumstances of the case into account including the number of appearances of the litigant and his counsel in Court. See generally Lonestar Drilling Nigeria Ltd. v. New Genesis Executive Security Ltd. [2011] LPELR-4437[CA] pages 11-12 and Master Holding [Nig.] Limited & Anor. v. Emeka Okefiena [2010] LPELR-8637[CA] pages 34-35.

In all cases, costs are not meant to be a bonus to the successful party or serve as punishment against the losing party. It cannot also cure all the financial losses sustained in litigation and the winning party has a duty to mitigate his losses. The main aim of cost is to indemnify the successful party for his out of pocket expenses and be compensated for the true and fair expenses of the litigation taking the facts of each case into consideration. See Citibank Nigeria Limited v. Ikediashi [2014] LPELR-22447[CA].

From the Court’s record, the Claimant attended Court three times but was represented by his counsel on 8 occasions and spent N56, 680 as filing and service fees. In the light of the foregoing, cost of N200, 000 is awarded in favour of the Claimant against the Defendants.

  1.  This now leads me to the counterclaim. The Defendants counterclaimed against the Claimant for:

  1. A declaration that the Claimant’s release of stock worth N50,000,000.00 [fifty million naira] without due authorization is a breach of the 2nd Defendant’s standard operating procedure for the release of stock.

  1. The sum of N36,237,000.00 [thirty-six million, two hundred and thirty-seven thousand naira] being the outstanding and unpaid balance on the stock which the Claimant released without authorization.

The burden of proving the counterclaim rests squarely on the Defendants. See sections 131 and 136 of the Evidence Act, 2011 and the case of U. B. N. Plc v. Ravih Abdul & Co. Ltd. [2019] 3 NWLR [pt.1659] 203 at 224. Facts in support of the counterclaim are contained in paragraphs 5 – 15 of the statement of defence and counterclaim. These paragraphs were reproduced in paragraphs 8 – 17 of the Defendants’ witness statement on oath. The Claimant’s response is in paragraphs 7, 15, 18, 20 and 21 of his reply and defence to counterclaim; which were reproduced in paragraphs 9, 17, 20, 21 and 22 of his further statement on oath.

A summary of the facts constituting the counterclaim, which are largely undisputed is that the Claimant, as stock controller in charge of 2nd Defendant’s warehouse in Bauchi, in February 2014 released stock worth N51, 237,000 to Babatunde Richard without approval. The discovery was made by the Defendants following a stock audit on 9th March 2015. The Claimant was queried, exhibit DW1D, and he answered the query, exhibits DW1E and DW1G, wherein he admitted release of the stock ‘unauthorised’.

The Defendants’ witness’ evidence relevant to the counterclaim is that as part of Claimant’s duties, he was to ensure compliance with the standard operating procedure for release of stock before releasing any stock; and during a stock count carried out by the Internal Audit department on 9th March 2015, it discovered a large quantity of goods was missing from the Claimant’s inventory. During interrogation Claimant admitted releasing the stock without due authorisation hoping it would be paid for before the Defendants became aware of it. Based on this, Claimant was placed on indefinite suspension by memo dated 30th March 2015. Preliminary investigations revealed that in February 2014 the Claimant transferred stock worth N50, 000,000 to undocumented locations and persons without due authorisation in flagrant breach of the 2nd Defendant’s standard operating procedure for release of stock. Due to price increase on some products the total value of the stock came to N51, 237,000 out of which the Claimant realised N15, 000,000 leaving a balance of N36, 237,000 which is part of the Defendants’ operating capital and has remained unpaid till date thus occasioning immense loss to the Defendants. Cross-examined by learned counsel for the Claimant, he reiterated the counterclaim and stated that the judgment of Bauchi Magistrate’s court did not exonerate the Claimant from breach of business process and gross misconduct. He admitted that Mr. Richard Babatunde was held liable for the amount claimed in the counterclaim.

  1.  Counsel for the Defendants, in his argument in support of the counterclaim, contended that the conviction of Mr. Babatunde Richard and the order for restitution of the sum of N34, 936, 250 is not a bar to the counterclaim. He cited a plethora of authorities including PML [Nigeria] Limited v. Federal Republic of Nigeria [supra] and Eagle Transport Co. Ltd v. Anyia & Anor. [supra]. He referred to section 7.1.1 to paragraph 7.5.0 of Exhibit DW1K and argued that the Claimant, in breach of this provision, released the goods in question to Richard Babatunde and failed to comply with the stipulated procedure and documentation for transfer of stock. He submitted that the Claimant was a fiduciary of the Defendants by reason of the fact that he had custody, charge and control of the inventory in the 2nd Defendant’s warehouse in Bauchi and; accordingly, had a legal obligation to act in the best interest of the Defendants.  He referred to Black’s law Dictionary, 8th Edition which defined fiduciary to include one who must exercise a high standard of care in managing another’s money or property and submitted that the Claimant owed the 2nd Defendant an obligation to exercise reasonable care and diligence while performing acts that could occasion waste or loss to it. He explained reasonable care to mean a degree of care which a person of ordinary prudence would exercise in the same or similar circumstances. He relied on Kabo Air Ltd v. Mohammed [supra]. Counsel submitted that the Claimant and Mr. Babatunde Richard are joint tortfeasors and to that extent, their liability for the loss of N36, 237,000.00 suffered by the 2nd Defendant is joint and several. He referred to Ifeanyi Chukwu [Osondu] Co. Ltd v. Soleh Boneh [Nig] Ltd [supra] amongst others.

            Counsel for the Claimant argued that the counterclaim is misconceived and an attempt to re-open a concluded case. He submitted that a person cannot be tried twice for an offence or an offence having the same ingredients. He referred to page 5 of exhibit 5 and queried whether the Claimant is a joint-tortfeasor and whether this Court has jurisdiction over actions on tort? To answer the question, learned counsel sought sanctuary in the case of Dickson & Anor. v. Assamudo [supra] which defined a tortfeasor as one who commits a tort, a wrongdoer; and when two or more tortfeasors who contributed to the claimants’ injury are joined as defendants in the same law suit, they are called joint tortfeasors, and concluded that the Claimant cannot be said to be a joint tortfeasor as he was sued alone.  Contrariwise, he argued that assuming Claimant qualifies as a tortfeasor, the validity of the action against the Claimant alone is questionable and relied on Ogbonnaya & Anor v. Mbalewe [supra]. Finally, Counsel submitted that this Court does not have jurisdiction over tort cases and relied on Akinyemi v Crawford University [supra] and Oyebanji Julius Odeniyi & 11 Ors v. Shell Petroleum Development Company of Nigeria Limited.

In his reply on points of law, Defendants’ counsel contended that the passage from Ogbonnaya & Anor. v. Mbalewe [supra] was quoted out of context and that the case is fatal to the Claimant’s argument in that it held that joint tortfeasors may be sued separately and if judgment against one is unsatisfied, the aggrieved party can proceed against the other tortfeasor. On the jurisdiction of this Court to entertain the counterclaim, he referred to section 7, National Industrial Court Act, 2006 and section 254 of the Constitution of the Federal Republic of Nigeria 1999 and submitted that the counterclaim is anchored on breach of duty of care in the course of Claimant’s employment occasioning severe loss. Responding on the case of Oyebanji Julius Odeniyi & Ors. v. Shell Petroleum Development Company of Nigeria Limited, he argued that the Court would assume jurisdiction over tort cases where employment law rules will be applied in resolution of the issues in dispute.

  1.  First, let me observe that although the Defendants’ standard operating procedure was pleaded and eventually tendered as exhibit DW1K, nowhere in the statement of defence and counterclaim or in the defence witness’ deposition was reference made to the portions of exhibit DW1K that the Claimant violated. Exhibit DW1K was bound, wrapped and dumped on the Court. Learned counsel attempted to untie exhibit DW1K in paragraphs 5.2 and 5.4 of Defendants’ final written address. It is the law that where contents of a document are material to a case relevant parts of that document must be set out in the pleading. See Tejumade & Anor. v. Olanrewaju & Ors. [2015] LPELR-25985[CA] pages 53-54. It is also settled law that the mere tendering of a document in evidence does not relieve the party tendering it from satisfying the legal duty placed on him to link the document to specific aspects of his case. It is not the responsibility of the Court to do this and counsel cannot do this in his final written address. See Prof. Bukar Bababe v. Federal Republic of Nigeria [2018] 7-10 SC 1 at 47-48.

            Secondly, I will deal with the issue of jurisdiction of this Court to entertain the counterclaim. Learned counsel for the Claimant forcefully argued that this Court does not have jurisdiction to entertain the counterclaim because it is founded on tort. He relied on some decisions of this Court. Counsel for the Defendants, on the other hand, contended that this Court in Oyebanji Julius Odeniyi & Ors. v. Shell Petroleum Development Company of Nigeria Limited held that it would assume jurisdiction over cases of tort where that require application of employment law rules for resolution of the issues in dispute. This Court in Oyebanji Julius Odeniyi & Ors. v. Shell Petroleum Development Company of Nigeria Limited posited, inter alia, that:

“When in doubt as to jurisdiction especially in the hybrid/borderline cases, this Court has evolved a simple but effective expedient; and that is to ask the question: what legal rules would apply in resolving the issue at hand? If it is labour or employment law rules, then the Court would assume jurisdiction, but if it is some other rule of law then most probably the Court would have no jurisdiction….But regarding other heads of liability in tort, which are all sui generis, the NIC has been reluctant to assume jurisdiction even when the “matters incidental thereto or connected therewith” argument has been raised. Towards this end, this Court had declined and still declines jurisdiction in claims for defamation even when the defamatory imputation was said to have arisen from the workplace…The fact that the right of a person is infringed in the workplace is not sufficient to confer jurisdiction on the court except an employment issue is involved.”

It is the law that the claim determines the jurisdiction of the Court, see Emeka v. Okadigbo & Ors. [2012] LPELR-9338[SC]. However, due to the special nature of this Court, the determining factors are the claim and applicable law or rules. The facts in support of the counterclaim are contained in paragraphs 5 – 15 of the statement of defence and counterclaim and have been summarised above; and the claim is for a declaration that the Claimant’s release of stock without due authorization is a breach of the 2nd Defendant’s standard operating procedure. Clearly, this is an employment issue. In line with the principle laid down by this Court on borderline cases, I agree with learned counsel for the Defendants that this Court has jurisdiction over the counterclaim and I so hold. Accordingly, the arguments of counsel on tortfeasor or joint tortfeasor become a non-issue.

  1.  The first claim is for a declaration that the Claimant’s release of stock worth N50, 000,000.00 [fifty million naira] without due authorization is a breach of the 2nd Defendant’s standard operating procedure for the release of stock. As stated earlier in this judgment, a party who seeks a declaratory relief has a duty to prove his entitlement to the relief. Evidence which must support a legal right must be overwhelming, total, convincing and credible. He must succeed on the strength of his case and not on the weakness or absence of defence. See Jikantoro & Ors. v. Dantoro & Ors. [supra] and Adama & Ors. v. Kogi State House of Assembly & Ors. [supra]. In the latter case, Augie, J.S.C., noted that:

“The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence.”

It is, therefore, the duty of the Defendants to establish by credible evidence their entitlement to the declaration. From pleaded facts, the Defendants anchored their counterclaim on the Claimant’s admission in exhibits DW1E and DW1G wherein he stated that “I am sorry for releasing the stock unauthorized….” There is nothing in these exhibits indicating that there was a procedure which ought to have been followed but was not. The Court cannot infer this from the Claimant’s apology reproduced above. The Defendants seek a declaration that the Claimant’s release of stock worth N50, 000,000.00 [fifty million naira] without due authorization is a breach of the 2nd Defendant’s standard operating procedure for the release of stock. This claim puts the 2nd Defendant’s standard operating procedure for release of stock in issue; and places a corresponding duty on the Defendants to specifically plead the relevant parts of the standard operating procedure, exhibit DW1K. See Tejumade & Anor. v. Olanrewaju & Ors. [supra]. As observed earlier in the judgment, there is no pleading of the relevant portions of exhibit DW1K allegedly breached by the Claimant and the penalty for the breach. Inevitably, no evidence was led on the portions of exhibit DW1K that was breached. I have carefully read the defence witness’ statement on oath, and for emphasis, some of the paragraphs are reproduced here.

“7.       As part of his duties, the Claimant was to ensure that the standard operating procedure for the release of stock was complied with and that he [Claimant] obtained due authorization before releasing any stock under his custody.”

“11.    Preliminary investigations conducted by the internal Audit department revealed that sometime in February 2014, the Claimant transferred stock worth N50,000,000.00 [fifty million naira] to undocumented locations and persons without due authorization in flagrant breach of the 2nd Defendant’s standard operating procedure for the release of stock.”

What this procedure which the Claimant allegedly breached is was not stated. For the Court to make a finding of fact that “the release of stock worth N50, 000,000.00 [fifty million naira] without due authorization is a breach of the 2nd Defendant’s standard operating procedure for the release of stock”, this procedure must be established. In Nasco Town Plc & Anor. v. Mr. Festus Ude Nwabueze [2014] LPELR-22526[CA] pages 24-25, Augie, J.C.A. [as he then was], put it succinctly thus:

“…a party claiming a declaration of right, must provide evidence – see Bello v. Eweka [supra], where the Supreme Court per Obaseki, JSC held – “Where a court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the Defendant that he is entitled. The necessity for this arises from the fact that the Court has discretion to grant or refuse the declaration and the success of a Claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence.”

There is no such proof, notwithstanding that the Claimant admitted release of the stock ‘unauthorised’ and that he was suspended, as argued by Defendants’ counsel, for “gross misconduct and disregard for constituted business process and fictitious transfer of goods to different locations without authorization”. Accordingly, I hold that the claim for declaration that the Claimant’s release of stock worth N50, 000,000.00 [fifty million naira] without due authorization is a breach of the 2nd Defendant’s standard operating procedure for the release of stock has not been proved. It is hereby refused.

  1.  The next relief is for the sum of N36, 237,000.00 [thirty-six million, two hundred and thirty-seven thousand naira] being the outstanding and unpaid balance on the stock which the Claimant released without authorization. This claim, in my considered opinion, is dependent on relief one; and where the principal claim has failed, the ancillary claim must also fail. See Atunka & Anor v. Aboki & Anor. [supra] cited by learned counsel for the Defendants and University of Ilorin Teaching Hospital v. Dr. Dele Abegunde [2013] LPELR-21375[CA] pages 41-42. Relief two, therefore, fails.

  1.  In conclusion, the Claimant’s case succeeds in part. Reliefs 3 and 4 fail and are hereby dismissed. Reliefs 1, 2, 5 and 6 are granted. Judgment is entered in favour of the Claimant against the Defendants as follows:

  1. It is hereby declared that the Claimant was in the employment of the 1st Defendant until his purported dismissal on 20th August 2018.

  1. It is further declared that the Claimant’s indefinite suspension without pay for over 3 years is an unfair labour practice.

  1. The sum of N3, 500,000 [three million, five hundred thousand naira] is awarded in favour of the Claimant against the Defendants as general damages for unfair labour practice.

  1. Cost of N200, 000 is awarded in favour of the Claimant against the Defendants.

  1. The monetary award shall be paid within thirty [30] days from today, failing which it shall bear interest at the rate of 10% per annum until it is fully liquidated.

  1. The counterclaim fails in its entirety and it is hereby dismissed.

Judgement is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

16/12/19

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