KOOMLONG I. MIAPHEN v. UNIVERSITY OF JOS CONSULTANCY LIMITED (2013)

KOOMLONG I. MIAPHEN v. UNIVERSITY OF JOS CONSULTANCY LIMITED

(2013)LCN/6210(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of May, 2013

CA/J/185/2002

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

KOOMLONG I. MIAPHEN Appellant(s)

AND

UNIVERSITY OF JOS CONSULTANCY LIMITED Respondent(s)

RATIO

THE MEANING OF A “QUERY”

What is the meaning or definition of a “query”? The WEBSTER’S DICTIONARY OF THE ENGLISH LANGUAGE DULUX EDITION, BY J. G. FERGUSON P. 794, defined the word “query” in these words:
“To inquire into, to ask about, to ask questions of, to interrogate, to express doubt concerning the correctness or truth of, to have or express doubts…” PER BDLIYA, J.C.A.

THE PROCEDURE FOR THE DISCIPLE OF AN OFFICER BY HIS EMPLOYER

When an officer is about to be disciplined by his employer, it is normal or usual to ask such officer to explain certain things before any decision is taken. This procedure or process is often referred to as query. In A.G. Kwara State v. Abolaji (2009) 7 NWLR Pt. 1139 p. 199 @ 212 this court held that an officer about to be disciplined is first given a query to explain certain things in writing. It is a query that precedes the setting in motion the procedure for disciplinary action. See also Iderima vs. Rivers State C.S.C. (2005) 16 NWLR Pt. 951 P. 378. PER BDLIYA, J.C.A.

THE BURDEN OF PROOF IN CIVIL MATTERS

Therefore, the burden of proof lies on the party that would fail if no evidence is adduced by either side. In respect of a particular fact, the burden rests on the party against whom judgment will be given if no evidence is adduced in respect of that fact. See Mani v. Shanono (2006) 4 NWLR pt. 969 p.132 @ 156 – 157; Tewagbade v. Akade (1968) NWLR p. 404 and Oyoubiare v. Omamurhomu (1999) 10 NWLR pt. 621 p. 156 – 157. In INEC vs. Ifeanyi (2010) 1 NWLR Pt. 1174 P.98 @ 120, this court held that by virtue of sections 135(1) and 137(1) of the Evidence Act, 2004 (which are now sections 133 and 136 of the Evidence, 2011) the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. See also Adegoke v. Adibi (1992) 5 NWLR pt. 241 P. 410; Adelaja vs. Alade (1992) 6 NWLR 245 p. 116 and University Press Ltd. v. Martins (Nig.) Ltd. (2000) NWLR Pt. 654 P. 584. PER BDLIYA, J.C.A.

WHETHER OR NOT AN INCOSEQUENTIAL ISSUE WHICH DOES NOT AFFCT THE MIND OF A JUDGE CAN BE SAID TO HAVE OCCASSIOED A MISCARRIAGE OF JUSTICE

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): Before the Plateau State High Court presided over by Hon. Justice Y.G. Dakwak (hereinafter referred to as the trial court), the appellant who was then the plaintiff claimed as follows against the respondent, who was then the defendant.
1. A declaration that the purported suspension of the plaintiff is unlawful, null and void; and of no effect whatsoever.
2. The sum of N218, 100.00 (Two Hundred and Eighteen Thousand, One Hundred Naira only) being balance of the plaintiff half salary unpaid during the period of the said suspension.
3. The sum of one Million Five Hundred Thousand Naira Only (N1.5M) being general damages for the psychological trauma, depression and pain suffered by the plaintiff as a result of the suspension.
4. A declaration that the purported termination of the plaintiff’s appointment is wrongful as same violates the regulations guiding the Plaintiff’s appointment.
5. An order re-instating the plaintiff and directing the restoration of the plaintiff’s benefits and entitlements.
6. IN THE ALTERNATIVE, the sum of Two Hundred and Fourteen Thousand, Five Hundred Naira only (N214,500.00) being the plaintiff’s gratuity and one month’s salary in lieu of notice.
The background facts and or events culminating into the institution of the case before the trial court could be summarized thus: sometime in 1991 the appellant applied for employment with consultancy services Division of the University of Jos. He was employed as Project Manager and was issued a letter of appointment. He rose to the rank of Acting Director in 1996. The Respondent was incorporated in 1997 by the name of University of Jos Consultancy Services Limited with its registered office at Murtala Mohammed Way, Jos. In 1998, the Appellant was suspended based on the recommendation of the Board of Directors of the Respondent.
The Appellant was served with a letter requesting him to account for certain sums of money he allegedly misappropriated, He responded by replying the letter giving an account of how the said sums of money was utilized. After receiving the response of the appellant, the respondent issued a letter terminating his appointment. The appellant did not agree with the termination of his appointment. He instituted a legal action against the Respondent before the Plateau State High Court. After hearing of the case, the trial court dismissed all the claims of the appellant, save that of payment of salary in lieu of notice. The appellant was not satisfied with the judgment of the trial court, hence his appeal to this court vide a notice of appeal dated and filed on 22nd of April, 2002.
The notice of appeal filed on 22nd April, 2002, consisted of five (5) grounds of appeal, without their particulars, they are as follows:
GROUND ONE
The Judgment is against the weight of evidence.
GROUND TWO
The learned trial judge erred in law when he relied on Exhibit “E” as amounting to a query and the basis upon which the Plaintiff was suspended, and proceeded thereafter to hold that “… the Defendant is therefore a separate and distinct legal entity from the University of Jos… The University of Jos Act, the rules and regulations which is the Exhibit “H” does not therefore apply in the affairs of the Defendant”, and by so holding occasioned a serious miscarriage of justice.
GROUND THREE
The learned trial judge misdirected himself in law when he held that the plaintiff was not entitled to the monetary claims in respect of the suspension, on the ground that the “Plaintiff was not only suspended but his appointment was eventually terminated”, and thereby occasioned a miscarriage of justice.
GROUND FOUR
The learned trial judge erred in law when he suo motu held that the Defendant “… is not an agent of University of Jos or University of Jos Consultancy Service Division. The University of Jos Act, the rules and regulations which is Exhibit “H” do not therefore apply in the affairs of the Defendant, and thereby occasioned miscarriage of justice.
GROUND FIVE
The learned trial judge erred in taw in refusing the Plaintiff’s claim for damages for wrongful suspension and gratuity, and thereby occasioned miscarriage of justice.
The appellant filed his Brief of Argument on the 27th of September, 2002. In it three (3) issues where distilled and tied to the five (5) grounds of appeal which are:
(i) Whether the lower court was right in relying on Exhibit “E” as amounting to a query (ground 2 of the grounds of appeal).
(ii) Whether the appellant was not entitled to the monetary claims in respect of suspension on the grounds relied upon by the lower court (grounds 1, 3 and 5).
(iii) Whether the trial court was right to hold suo motu that the respondent is not an agent of the University of Jos or the Uni Jos Consultancy Services Division (ground 4).
The Respondent filed its Brief of Argument on the 6th of November, 2002, wherein three (3) issues were distilled from and tied to the grounds of appeal. They are as follows:
(i) Whether Exhibit “E” can be treated as a query (ground 2).
(ii) Whether the appellant is entitled to monetary damages as a result of his suspension (grounds 3 and 5).
(iii) Whether the respondent is bound by the University of Jos Act, the rules and the regulations (ground 4).
The appeal came up for hearing on the 19th of March, 2013. B.S. Ngyou Esquire for the appellant adopted the appellant’s brief of argument.
Learned counsel did urge the court to allow the appeal, and enter judgment for the appellant. Professor S.S. Shikyil, of learned counsel to the Respondent adopted the Respondent’s Brief of argument as the argument of the Respondent in the appeal, urged the court to uphold the judgment of the trial court, and dismiss the appeal for it lacks merit.
Issue one (1) of the appellant and Issue one (1) of the Respondent are like identical twins. They can hardly be distinguished or differentiated.
So also is issues two (2) of the appellant and that of the Respondent. After carefully considering the issues formulated in the Briefs of argument of the parties, I am of the considered view that they can be compressed as follows:
(i) Whether Exhibit “E” can be treated as a query?
(ii) Whether the appellant is not entitled to monetary damages as a result of his suspension and termination of appointment on the grounds relied upon by the trial Court.
(iii) Whether the respondent is bound by the University of Jos Act, the rules and the regulations, and
(iv) Whether the trial Court was right to hold suo motu that the respondent is not an agent of the University of Jos or the University Jos Consultancy Services Division.
RESOLUTION OF ISSUES
ISSUE ONE (I)
Whether Exhibit ‘E’ can be treated as a query?
On page 70 of the record of appeal, the learned trial judge, after due consideration of the pleadings and the evidence before it, held that:
“The Exhibit ‘E’ sufficiently amount to querying the Appellant”. Was the learned trial judge right or justified in coming to such a conclusion and or decision?
Ngyou Esquire of learned Counsel to the appellant was of the view that from the pleadings and the evidence of the parties, it is clear that no query was given to the appellant before he was suspended. Learned Counsel contended further that no evidence was adduced before the trial Court to warrant such a conclusion. That it was not the Respondent’s case that Exhibit ‘E’ was a query. It was his submission that the learned trial judge simply speculated and made out a case for the defence. It was therefore not proper in law for the trial judge to speculate and make out a case for any of the parties in the proceedings. The cases of Alli V. Alesinloye (2000) FWLR PT. 15 p. 2610 @ 2642 and Ojo V. VFO LTD. (2001) FWLR pt. 42 p. 43 were cited to buttress the submissions supra.
Ngyou Esquire further submitted that even if the learned trial judge could make out a case for the parties, Exhibit ‘E’ can not amount to a query in that it was not issued by the Respondent. That the maker of Exhibit ‘E’ was not the employer of the appellant who could issue him a query. This is so because, it was pointed out, the trial court had held that the Respondent is a separate and distinct legal entity from the University of Jos. Learned counsel pointed out that Exhibits ‘D’ and ‘E’ were issued on same date, that is 26th January, 1998, it is therefore difficult to conclude that Exhibit ‘E’ led to the issuance of Exhibit ‘D’ since there is no evidence on the sequence of how these exhibits were issued. In the absence of evidence on the sequence of the issuance of these exhibits, it was submitted, it is only proper to conclude that Exhibit. ‘D’ was before Exhibit ‘E’, therefore it was erroneous to conclude that Exhibit ‘E’ formed the basis of Exhibit ‘D’. It was his further submission that by the pleadings the appellant was employed by the Consultancy Services Division of the University of Jos. That by paragraph 2 (viii) of Exhibit ‘B’ the appointment of the appellant was subject to the University of Jos Senior Staff Regulation, which is Exhibit ‘H’. Exhibit ‘H’ was therefore incorporated into Exhibit ‘B’ by reference. The trial court ought to have taken that into consideration. The case of Awoloja v. Seatrede (2002) 2 SCNJ P. 35 was cited in aid.
Ngyou Esquire, further submitted that where there is a written document for contract of appointment it must be adhered to strictly and its contents must be given effect accordingly. The case of Angel Shipring & Dyeing Ltd. v. Ajah (2000) FWLR PT. 23 p. 1332 was relied upon to reinforce the submission supra. In view of the foregoing, it was contended; Exhibit ‘B’ was the document regulating the employment of the appellant from the date of his employment to the date of his suspension by the Respondent. Learned counsel made the point that since there is no pleadings or evidence to show that Exhibit ‘B’ was no longer in force or subsisting regulating the employment of the appellant it was wrong for the trial court to have found and concluded that the University of Jos Act, the rules and regulations, which is Exhibit ‘H’ do not apply in the affairs of the Respondent. It was learned counsel’s view that the findings and conclusion arrived at by the trial court was perverse. This is so, he submitted, because the learned trial judge did not properly evaluate and ascribed probative value to the evidence before it, thereby occasioning a miscarriage of justice.
In conclusion, Ngyou Esquire adumbrated that having found that the University of Jos Consultancy Services Division was incorporated as a Limited Liability Company, and that its assets and liabilities, inclusive of staff, was inherited or taken over by the Respondent, and since Exhibit ‘H’ has not been shown to have ceased governing the employment of the appellant, the learned trial judge was in error to have held that the said Exhibit ‘H’, was not regulating the employment of the appellant. This is moreso when there is no other condition of service shown to govern the employment of the appellant. The cases of Sagay V. Sajare (2000) FWBR pt. 7 p. 111 and Lagos Island Local Government Council (2000) FWBR PT. 132 p. 2132 were cited to reinforce the submission supra.
For the Respondent, Prof. Shikyil, of Learned Counsel referred to Exhibit ‘E’ and submitted that in order to determine whether Exhibit ‘E’ amounts to a query or not, it is important to define what is a query.
Learned counsel cited WEBSTER’S DICTIONARY OF THE ENGLISH LANGUAGE – DELUXE EDITION, By J.G. FERGUSON PUBLISHING COMPANY at p. 794, wherein the word ‘Query’ has been defined, and submitted that from the foregoing definition, there is no doubt that Exhibit ‘E’ sufficiently amounts to a query. It was learned counsel’s further submission that the contention of the appellate that the issue of a query did not arise at the trial is misleading, and can not be correct; in view of his pleadings in paragraph 18 of his statement of claim and his evidence before the trial court. Learned counsel adumbrated that the combined effect of the appellant’s averments in paragraph 18 of the statement of claim and his evidence thereon clearly introduced the issue of whether he was queried or not by the Respondent before the suspension and subsequent termination of his appointment. In conclusion, he submitted that the learned trial judge was therefore right when he held at page 70 of the record of appeal that Exhibit ‘E’ sufficiently amounted to a query since the issue arose out of the averments in the pleadings and the evidence before him. The court has been urged to resolve this issue against the appellant.
What is the meaning or definition of a “query”? The WEBSTER’S DICTIONARY OF THE ENGLISH LANGUAGE DULUX EDITION, BY J. G. FERGUSON P. 794, defined the word “query” in these words:
“To inquire into, to ask about, to ask questions of, to interrogate, to express doubt concerning the correctness or truth of, to have or express doubts…”
Exhibit ‘E’, is a letter addressed to the appellant by the Consultancy Services Division, University of Jos; the predecessor in title to the Respondent. The contents of Exhibit ‘E’ are thus:
“26th January, 1998
Mr. K. I. Miaphen,
Deputy Director (Projects),
Unijos Consultancy Limited,
Jos.

Dear Sir,
BOARD DECISION ON THE REPORT OF THE COUNCIL COMMITTEE ON COSULTANCY SERVICES UNIT
In considering the Report of the Council Committee on Consultancy Services Unit (1993 – 1996), The Board observed that you negligently, without authority and in reckless disregard of approved rules and procedures, withdrew and disbursed N314, 000.00 to the Director, Institute of Education, University of Jos, Jos. The amount represented proceeds a course organized for the Nigerian Air Force.
2. The Board also observed that you received N2,600.00 on behalf of the Consultancy Services Unit but that you failed to remit the amount so collected to the Unit.
3. In addition, you collected N2,000 (1994) and N6,000 (1996) as staff advances but failed or neglected to refund or retire these amounts.
4. The Board also observed that you hired a tractor for N30,000.00 and hired it out for only N14,000.00, thus incurring a loss of N16,000.00. The Board would like to know how this happened.
5. In consequence of above, the Board has approved that you account fully for these amounts, not later than January 29, 1998.
6. Thanks.
Yours Faithfully,
S. A. Mohammed
Ag. General Manager/Secretary
to the Board.”
In Exhibit ‘E’, which has been reproduced supra the appellant was asked to explain how and why will various sums of money were spent or expended. Paragraph 5 of the said letter is very instructive. It provides:
“In consequence of above, the Board has approved that you account fully for those moneys, not later than January, 29, 1998.”
If the definition of the word ‘query’ supra, is related to the contents of Exhibit ‘E’, especially paragraphs 2, 3, 4 and 5 thereof; it would be seen that the appellant was asked to explain or account for the expenditure of various sums to money. When an officer is about to be disciplined by his employer, it is normal or usual to ask such officer to explain certain things before any decision is taken. This procedure or process is often referred to as query. In A.G. Kwara State v. Abolaji (2009) 7 NWLR Pt. 1139 p. 199 @ 212 this court held that an officer about to be disciplined is first given a query to explain certain things in writing. It is a query that precedes the setting in motion the procedure for disciplinary action. See also Iderima vs. Rivers State C.S.C. (2005) 16 NWLR Pt. 951 P. 378.The learned trial Judge was therefore on a formidable ground when he held on page 70 of the record of appeal that Exhibit ‘E’ sufficiently amount to querying the appellant.
Did the trial court make out a case for the parties when it held that Exhibit ‘E’ amount to a query as canvassed by Ngyou Esquire, of learned counsel to the appellant? Paragraph 18 of the statement of claim and the evidence of the appellant are relevant in the consideration of this assertion.
Paragraph 18 of the statement of claim of the appellant before the trial court contained the following averments:
“The Plaintiff contends that before his suspension, he was not given any query or interdiction of any kind”‘
In his evidence in-chief before the trial court, the appellant testified as follows on pages 26 – 28 of the record of appeal:
“Prior to the issuance of Exhibit ‘D’ there was no query issued to me, there was no invitation to appear before any committee…”
In view of the foregoing, I am in full agreement with Prof. Shikyil Esquire, of learned counsel to the respondent when he adumbrated that the combined effect of the averments in paragraph 18 of the statement of claim and the evidence of the appellant thereon, raised the issue of query before the suspension and subsequent termination of the appellant. The learned trial judge was therefore right and or justified in arriving at the decision that Exhibit ‘E’ sufficiently amounts to querying the Appellant.
This issue (one) is hereby resolve against the appellant the appellant.
ISSUE TWO (2)
Whether the appellant is not entitled to monetary damages as result of his suspension and termination of appointment on the grounds relied upon by the trial court?
On this issue Ngyou Esquire, of learned counsel did submit that the appellant’s averments contained in paragraphs 8, 10, 11, 12 and 13 of his statement of claim were not categorically denied by paragraphs 7 and 9 of the Respondent’s statement of defence. It was an evasive denial which in law amounts to no denial at all. The cases of Nnanna v. Onyenakuchi (2000) FWLR pt. 20 p.607 and Onyemelukwe v. L.D. D’Alberto & Co. Ltd. (2001) FWLR pt. 83 p. 2166 were cited to buttress the submissions supra. Where evidence is not discredited under cross-examination and there is no contrary evidence from the opposing party, it was submitted, such evidence are to be taken uncontradicted. The case of Oduneye Vs. The State (2000) FWLR pt. 15 p. 2289 was cited in aid.
On the reliefs sought in respect of monetary damages which was refused by the trial court on page 70 of the record of appeal, learned counsel submitted that refusal of the claim of general damages was wrong in law in that the termination of the appointment of the appellant can not make right the unlawful suspension. It was further contended that the reliance on Exhibit ‘E’ which was predicated on Exhibit ‘D’ by the trial court was improper and erroneous having held on page 70 of the record of appeal that the Respondent, having been incorporated became a separate legal entity, It was his further submission that it was not proper for the respondent to rely on the report of the University of Jos Consultancy Services to terminate the employment of the appellant. This is so because, as he put it, there is no evidence that Exhibit ‘G’ was issued because the respondent was not satisfied with Exhibit ‘F’ the response of the appellant to Exhibit ‘E’.
Ngyou Esquire also contended that there are no averments and evidence showing that Exhibits ‘D’ and ‘F’ culminated to the issuance of Exhibit ‘G’. The trial court therefore went on a frolic in search of evidence for the defence which the Supreme Court had by several decisions disapproved of it. A court of law can not make out a distinct case from that presented by the parties. The case of Orizu vs. Anyaegbunam (1998) 5 S.C. p. 1 @ 36 was relied upon for the proposition of the law adumbrated supra. Learned counsel pointed out that the appellant’s appointment was terminated because his services were no longer required, not due to any allegation of wrong doing. He is therefore entitled to outstanding salaries, allowances and consequential damages caused by the wrong suspension. The claim in paragraph 29(3) of the statement of claim ought to be granted in view of the pleadings and the evidence placed before the trial court. In the alternative, it was submitted, the appellant is entitled to gratuity since there has been no denial of the averments in support thereof by the respondent. Learned counsel further submitted that since the evidence of the appellant on the claims for damages and gratuity have not been not challenged by the respondent, same ought to have been granted. The cases of Onyemelukwe v. D’ Alberto Co. Ltd. supra and Honika Sawaill (Nig.) Ltd. v. Hofe (1994) 2 NWLR Pt. 326 P. 252 were relied upon. It was observed that the learned trial judge failed in his primary duty to assess, evaluate and ascribe probative value to the evidence of the appellant in refusing the claim of general damages and or granting the claim of gratuity. The failure to do so led the trial court to arrive at a wrong decision, thereby occasioning a miscarriage of justice.
The court was then urged to resolve this issue in favour of the appellant. For the respondent, Prof. Shikyil, of learned counsel submitted that the suspension of the appellant was pursuant to Exhibit ‘D’. It was further submitted that being a disciplinary measure taken by the respondent, it can not be unlawful, null or void. The case of Igwilo v. CBN (2002) 9 NWLR Pt. 672 P. 302 @ 338 was cited to buttress the submissions supra. Learned counsel further contended that the claim of N1.5M by the appellant is therefore baseless, unfounded and unmeritorious because it can not be sustained in view of the lawful suspension of the appellant by the respondent who took a lawful procedure available to an employer over an employee. The case of Igwilo v. CBN (supra) was cited in aid. It was learned counsel’s submission that having been lawfully suspended, the appellant is not entitled to the claim of N1.5M as general damages for the alleged sufferings of psychological trauma and depression.
As to the claim of the sum of N218,100.00 being the balance of his half salary for the period of the suspension, learned counsel contended that the burden of proving same is on the appellant. It was submitted that the appellant did not plead the claim of the half salary for the period of the suspension. That the evidence adduced in respect of this claim go to no issue since there is no pleadings in support of it. Where evidence is at variance with the pleadings, same is not to be relied upon by a court of law in the resolution of a dispute. The case of SPDC of Nigeria Ltd. V. Ifeta (2001) 11 NWLR pt.473 p. 485 was relied upon. The court has been urged to refuse these claims for the sum of N1.5M and that of N218,100.00 having not been proved by the appellant. This issue be resolved against the appellant.
The monetary damages being claimed by the appellant are those contained or specified in paragraph 29 of the statement of claim, which are as follows:
(i) N218,100.00 being balance of half salary unpaid during the period of suspension.
(ii) The sum of N1.5M being general damages for the psychological trauma, depression and pain suffered as a result of the suspension, and in the alternative.
(iii) The sum of N214, 500,00 being the plaintiff’s gratuity and one month’s salary in lieu of notice.
The learned trial judge, after reviewing the evidence adduced by the appellant and the respondent vis-‘E0-vis the pleadings, refused and dismissed the monetary claims of the appellant on the ground that same were not substantiated by credible evidence. Was the learned trial judge right in doing so? In civil cases, the general principle of law is that the burden of proof rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative before evidence is gone into.
Therefore, the burden of proof lies on the party that would fail if no evidence is adduced by either side. In respect of a particular fact, the burden rests on the party against whom judgment will be given if no evidence is adduced in respect of that fact. See Mani v. Shanono (2006) 4 NWLR pt. 969 p.132 @ 156 – 157; Tewagbade v. Akade (1968) NWLR p. 404 and Oyoubiare v. Omamurhomu (1999) 10 NWLR pt. 621 p. 156 – 157. In INEC vs. Ifeanyi (2010) 1 NWLR Pt. 1174 P.98 @ 120, this court held that by virtue of sections 135(1) and 137(1) of the Evidence Act, 2004 (which are now sections 133 and 136 of the Evidence, 2011) the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. See also Adegoke v. Adibi (1992) 5 NWLR pt. 241 P. 410; Adelaja vs. Alade (1992) 6 NWLR 245 p. 116 and University Press Ltd. v. Martins (Nig.) Ltd. (2000) NWLR Pt. 654 P. 584.
On the pleadings of the parties before the trial court, the burden of proving the claim of N218, 100.00 being the balance of unpaid salary for the period of the suspension and the sum of N1.5M for sufferings due to the suspension was on the appellant. Did he discharge this burden entitling him to the claims sought? The evidence adduced in support of the claim of N218, 100.00 adduced by the appellant can be found on pages 22, 23 and 24 of the record of appeal. The gist of the evidence is that he was suspended for the period of one year and seven (7) months. He was placed on half salary for the said period. He wanted the trial court to declare the suspension unlawful, null and void. That all his entitlements be paid. The sum total of the entitlements amounted to N218, 100.00. As earlier pointed out in this judgment, the learned trial judge refused to grant this claim because the appellant was not entitled to it having found that the suspension was a disciplinary action taken by the respondent, therefore, it was lawful, legal and appropriate. Was the learned trial judge right in arriving at this decision?
What is suspension of an employee by an employer? When is it resorted to in the relationship between an employer and an employee?
What were the conditions of service between the appellant and the respondent? The answers to these questions, in my view, would resolve the question posed supra, that is, whether the learned trial judge was right or justified in dismissing the claim of N218,100.00 being for unpaid salary for the Period of his suspension.
The Black’s Law Dictionary, 8th Edition, by Bryan A. Garner, Page 1487, defined the word “suspension” as the act of temporarily delaying, interrupting or terminating something. The temporary withdrawal from employment; as distinguished from permanent severance, e.g. suspension from teaching without pay, between master and servant. In Longe v. FBN Plc. (2010) 6 NWLR Pt. 1189 P. 1 @ 55 and 60 the court described suspension as a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between an employer and employee, but there is neither work being done in pursuance of it nor remuneration being paid. It is neither a termination of the contract of the employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligation of the parties to each other. It is a term entitling the employer to suspend the employment of the employee. It is a step taken before finally deciding what disciplinary action is to be taken by an employer against an employee. Suspension by an employer of an employee only means that the employee has been stopped from performing the normal or ordinary functions or duties of his office. See University of Calabar V. Esiaga (1997) 4 NWLR pt. 302 p. 719. Where an employee is placed on suspension, he is placed on hold that is, in anticipation of either being recalled or laid off permanently. See SDPC (Nig.) Ltd. V. Emeharu (2007) 5 NWLR pt. 1027 p. 347 @ 376. The right to suspend an employer is available to an employer in order to effect proper investigation of allegation or during the process of a disciplinary action. See Udemah V. Nigerian Coal Corporation (1991) 3 NWLR Pt. 180 P. 479 @ 486.
On page 70 of the record of appeal, the learned trial judge found and held that:
“I am therefore satisfied that the suspension of the plaintiff by the defendant in the circumstances is in order and I decline to pronounce it as unlawful, null and void, and of no effect”
In the case of Udemah V. Nigerian Coal Corporation Supra page 376, it was held that the right to suspend an employee is available to an employee in order to effect proper investigation of allegation or during the process of disciplinary action. Exhibit ‘D’ is a letter of suspension of the appellant by the respondent. Exhibit ‘E’ is the query to the appellant containing certain allegations on how various sums of money were spent or utilized. On page 90 of the record of appeal, the learned trial judge held as follows:
“Having held that the suspension of the plaintiff is lawful, it only follows that the second and third issues will be and are hereby determined in the negative. That is that the plaintiff is not entitled to the sum of N218, 000.00 being the balance of the plaintiff’s half salary during the period of suspension.”
I can not agree more with the learned trial judge. I fully endorse his findings and conclusions the appellant was suspended from office by the Respondent because of the allegations in Exhibit ‘E’; which was pursuant to the Board’s decision on the report of the Council Committee on Consultancy Services Unit. Exhibit ‘D’ is the suspension letter issued to the appellant after the Board of Directors of University of Jos Consultancy Limited deliberated on the Report of the Council Committee on the Consultancy Unit, University of Jos, and approved, among other things, that the appellant be suspended from duff with immediate effect and until further notice, Ngyou Esquire, made a heavy weather of the sequence of the issuance of Exhibits ‘D’ and ‘E’. That there is no evidence to show which one preceded the other. To my mind, from the contents of the two documents, and logically too, the letter of suspension naturally must follow the decision of the Board of Directors. It makes no difference, in my view, that the two documents were written on the same day. In view of what have been said hereinbefore in the foregoing paragraphs, I entirely agree with the findings and the decision of the learned trial judge that the appellant can not and is not entitled to the claim of N218,100,000 being the balance of unpaid salaries for the period of his suspension.
The claim of N1.5m being general damages for the psychological trauma, depression and pain suffered by the appellant as a result of the suspension. The appellant pleaded these facts in paragraphs 21 to 28 of the statement of claim.
“21. The plaintiff contends that his suspension for about one year 7 months has caused him untold hardship and has reduced him to the point of begging as he could not seek any employment since his fate was not yet determined.
22. The plaintiff contend that two of his children are in the Secondary School. The 1st child who was in St. Joseph’s College Vom, had to be transferred from St. Joseph’s College Vom to St. Murumba as he could not pay the child’s school fees due to the suspension.
23. The Plaintiff further contends that due to the suspension, he was forced to contend with the embarrassing situation of his children being send from school for lack of school fees.
24. The Plaintiff contends that the suspension has caused his children and himself, psychological trauma and pains.
25. The plaintiff contends that in fact, his younger sister who ought to be one of his dependants had to pay his 13 year old daughter’s school fees at the St. Louis College.
26. Since the suspension and even at the moment, the plaintiff is unable to meet his obligation to his immediate family and to his dependants to wit his age mother and his Younger brothers.
27. The plaintiff contends that the suspension has reduced him to the level of a beggar and he lives on the generosity of friends and relatives.
28. The plaintiff further contends that at the moment, he is being threatened with an ejection notice as he is unable to pay his house rent.”
The evidence adduced by the appellant in support of his claim of N1.5m general damages are on pages 22 to 23 of the record of appeal.
After considering the evidence of the appellant, the learned trial judge found and held thus on page 70 of the record of appeal.
“The plaintiff is not equally entitled to the sum of N1.5m or any sum as damages for psychological depression, trauma and pain which he suffered while the suspension lasted.
This is so because the plaintiff was not only suspended but his appointment was eventually terminated. This only means that the dependent was not satisfied with the plaintiff’s response to the Exhibit ‘E’, which represses is the Exhibit F hence the fetter of termination to the plaintiff which is the Exhibit G”.
The learned trial judge had found and held that the suspension of the appellant was lawful, which was followed by the termination of his appointment. This is what the learned trial judge said on page 70 of the record of appeal:
“The plaintiff is not equally entitled to the sum of N1.5m or any sum as damages for psychological depression, trauma and paid which he suffered which the suspension lasted.
This is so because the plaintiff was only suspended but his appointment was eventually terminated”.
Was the learned trial judge right or justified in coming to this decision? In my view, 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 Udemah V. Nigerian Coal Corporation (1991) 3 NWLR pt. 180 P. 477 @ 486, this court held that the right to suspend an employee is available to an employer in order to effect proper investigation of allegations or during the process of a disciplinary action. The suspension of the appellant by the respondent, in my view, was in order and has legal basis, I agree, in toto, with the learned trial judge when he held that the appellant was not entitled to the sum of N1.5m being general damages for the psychological trauma, depression and pains suffered as a result of the suspension. The said claim of general damages was therefore rightly refused by the trial Court.
The alternative claim of N214,500.00 being gratuity and one month salary in lieu of notice. Ngyou Esquire, of learned Counsel referred to Exhibits ‘B’ and ‘H’ and submitted that these documents governed the employment of the appellant. It was further submitted that the evidence of the appellant on his entitlement to gratuity and salary for 3 months in lieu of notice has not been challenged nor contradicted by the respondent.
Evidence not contradicted, he submitted, can be relied on by the Court to arrive at a decision. The cases of Onyemelukwe v. D’Alberto & Co. Ltd. and Honika Sawmill Nig.) Ltd. v. Hoff (1994) 2 NWLR Pt. 326 p. 252 were cited to buttress the submission supra. Learned counsel adumbrated that the learned trial judge did not evaluate the evidence adduced by before it when it arrived at its decision that the appellant is not entitled to the monetary claims including that of gratuity. Prof. Shikyil, of learned counsel was of the view that the appellant failed to prove his entitlement to gratuity. That the learned trial judge was right in not granting the sum of N214, 500,00 as claimed by the appellant.
On page 73 of the record of appeal, the learned trial judge found and held as follows:
“As regards the issue of gratuity, the plaintiff can not be entitled to this because there is no such from the evidence that he is entitled to gratuity from the defendant. There is no evidence that the defendant has such a scheme for its workers. I the University of Jos has such a scheme I have pointed out that the defendant is a separate and distinct legal entity from the defendant (sic) and nor bond (sic) by the University or Jos Act or regulation relating to gratuity of the University of Jos. In the final event the only thing which the plaintiff is entitled to say this judgment is three months salary in lieu of notice for the wrongful termination of the appointment”.
Did the appellant prove his entitlement to the sum of N214, 500.00 being gratuity after his appointment was terminated by the Respondent?
The evidence adduced by the appellant in support of the claim for gratuity can be found on pages 23, 24 and 25 of the record of appeal. On page 24 this is what he testified.
“I am also claiming in the alternative of reinstatement the sum of N214, 500.00 being gratuity and one month salary in lieu of notice because I am entitle to that. Having spent over seven (7) years serving the defendant my gratuity is 116% total annual emolument plus one month salary in lieu of notice as per the condition of service. The annual emolument will be the monthly salary of N17, 788.00 multiplied by 12. That is all…”
What are the averments in the statement of claim on which the above evidence was adduced? None at all. The law is trite that evidence to be admissible must be related to averments in the pleadings. Evidence that is admitted without having facts pleaded therefor, go to no issue, same is to be discountenanced or expunged from the record without relying on it in the determination of the dispute before the Court. This proposition of the law has been upheld by the Supreme Court in the case of Ojiogur v. Ojiogo (2010) 79 NWLR Pt. 1198 P. 1026, where it was held that facts relevant to proof of an issue in contention must be pleaded by the party intending to rely on same before any evidence can be adduced thereon. Where such relevant fact is not pleaded, any evidence given in proof of same is said to go to no issue. Again in Manu vs. Shanono (2006) 4 NWLR pt. 969 P. 132 @ 157, the Supreme Court stated that evidence led on facts not pleaded goes to no issue. Where such evidence has been inadvertently admitted it would be expunged. See also Ukaegbu v. Ugoji (1991) 6 NWLR Pt. 196 P. 127; Thompson v. Arowolo (2003) 7 NWLR pt.818 p.163. In view of the foregoing, the contention of Ngyou Esquire, of learned Counsel, that the evidence adduced by the appellant in support of the claim of N214,500.00 entitlements of gratuity has not been challenged nor contradicted has no consequence on the decision arrived at by the trial court.
The learned trial judge on page 73 at the record of appeal also came to the conclusion that the University of Jos Act, the rules and the regulations on the condition of service regarding its staff or employees can not be available to the appellant in view of the fact that the respondent in this appeal was incorporated as a limited Liability Company in 1997.
Having been incorporated, it acquired a legal entity distinct, separate and different from the University of Jos, notwithstanding that the University is a major shareholder of shares in the Company. I am in full agreement with the findings and decision of the learned judge. Exhibit ‘H’ therefore has no bearing or relevance to the condition of service of the appellant. There is no evidence before the trial Court on the scheme of gratuity for the employers of the Respondent. How the appellant claimed the sum of N214, 500.00 as gratuity is baffling. The learned trial judge was therefore right in coming to the decision that the appellant was not entitled to the sum of N214,500.00 as gratuity after the termination of his appointment by the Respondent.
As to the claim of one month salary in lieu of one month notice the learned trial judge said as follows on pages 72-73 of record of appeal respectively:
“…However even though no condition of service is before me that can bind the plaintiff with the defendant, there is no doubt that the termination of the plaintiff appointment was made without any notice to him nor was he given any salary in lieu of notice.
Where however in a contract of service where there is even no provision for notice required for termination, thereof, there is an implied term that contract can only be terminated upon reasonable notice. What is reasonable notice, however, usually depends on the following……
……I hold that the plaintiff in the circumstance needed a notice of not less than three months or three months salary in lieu of notice. Having so found a ward to the plaintiff the salary of three months at the title of termination as salary in lieu of notice…”
I am in full agreement with the learned trial judge, even though the condition of service contained in Exhibit ‘H’ where not applicable to the employment of the appellant. In view of what has been said earlier in this judgment, the general principles of common law would apply that reasonable notice must be given before an employer can terminate the employment of an employee. What is a reasonable notice is a question of facts to be determined in the circumstance of each case. The award of three(s) month’s salary to the appellant in lieu of notice is therefore commendable. In sum, the claim for monetary entitlements of N218, 500.00; being balance of unpaid salary for the period of suspension; N214, 500.00 being gratuity have not be proved as held by the trial Court.
However, the appellant is entitled to salary of three (3) months in lieu of notice for the reasons given by the learned trial judge.
ISSUE THREE (3)
Whether the respondent is bound by the University of Jos Act, the rules and the regulations thereof:
On page 71 of the record of appeal, the learned trial judge held that:
“There is no doubt that the University of Jos has the total or controlling shares in the defendant, the question then is whether each after incorporation, the defendant is bound by the University of Jos Act, or by the regulations governing the condition of service of the University of Jos or to be precise by the Exhibit H. The position of the law is that a limited liability company which is incorporated with power to sue and be sued in its own name and with power to act as a corporate entity can not be governed by the rules of another organization even if that organization has majority or controlling shares in the company.
Once such a company is incorporated as an entity of its own and having its own legal existence it can not be bound by the rules or laws of another organization.”
Was the learned trial right in coming to such a conclusion? Ngyou Esquire, of learned Counsel was of the view that the employment of the appellant was governed by Exhibits ‘B’ and ‘H’ even after the incorporation of the Respondent as a limited liability Company in the absence any other law, rules or regulations put in place. Prof. Shikyil, of learned Counsel did not subscribe to such argument. The learned Counsel held the view that with the incorporation of the respondent as a legal entity, that is a limited liability company, the University of Jos Act, its rules and regulations thereof governing the condition of service of its employers can not be applicable to the employees of the respondent.
The evidence before the trial Court is that the respondent was at first established as University of Jos Consultancy Services. It later became University of Jos Consultancy Division. Finally in 1997, it became the University of Jos Consultancy Limited. At the time of its incorporation, it inherited or took over all the employees of the former entities, including their assets and liabilities. Exhibit ‘H’ is the Regulations governing the condition of Service of the Senior Staff of the University of Jos. It is titled “condition of Service of the Academic and non Academic Senior Staff of the University of Jos,” which came into force or operation on 26th June, 1979. Section 2 thereof provides that; the conditions shall apply in respect of any office or employment in any faculty College, Department, Centre, Unit or Service, however designated which is a part of the University of Jos. Section 4 of Exhibit ‘H’ defined certain terminologies therein. The words “Faculty”, “institute” “Centre, Division” have been defined appropriately as are used in the said Exhibit ‘H’. There has been no reference made to the respondent who is a limited liability company.
The law is trite, that an incorporated body is a legal entity which is distinct, different and separate from any other body. Therefore, the University of Jos Consultancy Services, later the University of Jos Services Division, ceased to exist in law the moment it was incorporated as a limited liability Company.
The evidence of the appellant as P.W.1 before the trial Court and that of D.W.1 are conclusive on the incorporation on the respondent as a limited liability company. In view of the foregoing, was the learned trial judge justified in coming to his decision on page 71 of the record of appeal that the said Exhibit ‘H’ is not applicable to the affairs of the respondent?
Perhaps the decision of the Supreme Court is the case of Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 6 NWLR Pt. 710 P. 660 @ 685 may be at assistance in this regard. The court held that a limited liability company with power to sue and be sued in its own name and with power to act as a corporate entity can not be governed by the Civil Service Rules. The spirit of the corporate existence of Companies will be negated should such state of affairs be allowed to have sway. The contention of Ngyou Esquire that Exhibit ‘H’, it applicable to the conditions of service of the employees of the respondent can not be correct. Rather, Prof. Shikyil, Esq. of learned counsel, was on a formidable ground when he adumbrated that Exhibit ‘H’ can not be applied to govern the conditions of service of the employees of the Respondent. The learned trial judge’s findings and conclusions on page 71 of the record of appeal can not therefore, be faulted. This issue is hereby resolved positively, that is, Exhibit ‘H’ is not applicable to the conditions of service of the employees of the respondent.
ISSUE FOUR (4)
Whether the trial court was right to hold suo motu that the respondent is not an agent of the University of Jos or the University of Jos Consultancy Services Division.
Ngyou Esquire, of learned counsel submitted that the learned trial judge was in error when it, suo motu, raised and resolved the issue of whether the respondent was an agent of the University of Jos or the University of Jos Consultancy Services Division without hearing the parties.
On page 71 of the record of appeal the learned trial judge held as follows:
“The defendant is therefore separate and distinct legal entity from the University of Jos.
It is therefore not an agent of University of Jos or University of Jos Consultancy Services Division.”
I agree, in toto, with Ngyou Esquire, of learned counsel, that a court of law has no power or jurisdiction to raise an issue, suo motu, and resolve same without affording an opportunity to the parties or those that would be affected by the resolution of such issue, to be heard before taking a decision. There are plethora of decided cases by the superior Courts; that is, the Supreme Court and this Court, For emphasis, I think a recourse to few decided cases will illuminate the point being made. For instance, in Ojo V. Victimo Fixed Odds Ltd. (2000) 9 NWLR Pt. 673 P. 649 @ 661, this court held that under the Nigerian adversary system of administration of justice, where the judge is at all times expected to play the role of an unbiased umpire, he can not raise any issue of facts, suo motu, and proceed to decide the matter or such issue without hearing the parties. The judgment of the court must be confined to the issue of facts raised by the parties. Again in Amasike V. Registrar-General, C.A.C. (2006) 3 NWLR pt. 968 p. 462 @ 488, this court stated that when a court raises a point, suo motu, parties to the suit must be given an opportunity to be heard on such a point, particularly the party that may be affected or suffer some disadvantage or disability as a result of such point raised suo motu. This is to ensure not only that the parties are given a fair hearing, but that justice is seen to have been done in accordance with the principles of “audi alteram partem” rule. See also Kankara V. Comm. Of Police (2002) 13 NWLR pt. 785 p. 596; Amadu vs. Yantumaki (2011) 9 NWLR pt. 1251 p, 161 @ 183; Kinfan vs. Kinfan (2006) 6 NWLR pt. 975 p. 200; Shitro-bey vs. FPSC (1989) 1 NWLR Pt. 372; Sande vs. Abdullahi (1989) 4 NWLR Pt. 116 P. 387; Odiase v. Agbo (1972) 1 All NLR p. 170 and Atanda v. Lakami (1974) 3 S.C. P. 109.

However, the issue raised suo motu must be one that the court relied upon to take a decision which has tilted the scale of justice in favour of one of the parties. An irrelevant or inconsequential issue which has not affected the mind of the judge in arriving at a decision can not be said to have occasioned a miscarriage of justice. See Amasike V. Registrar General, C.A.C, (2006) 3 NWLR Pt. 968 P. 466 @ 489; Ike v. Ugbeaja (1993) 6 NWLR pt.301 p. 539; Ojo vs. Babalola (1991) 4 NWLR pt. 185 p. 267; Ibrahim V. JSC (1998) 14 NWLR Pt. 584 P. 1; Ndiwe vs. Okocha (1992) 7 NWLR pt. 252 P. 129 and Nwokoro V. Onuma (1990) 3 NWLR Pt. 136 P. 22.
The issue of the respondent not being an agent of the University of Jos or the University of Jos Consultancy Services alluded to by the learned trial judge on page 71 of the record of appeal is a conclusion arrived at after considering the evidence before it. In my view, it is not an issue which is central or vital to the dispute between the appellant and the respondent. The conclusion arrived at by the learned trial judge that the respondent is not an agent of the University of Jos or the University of Jos Consultancy Services can not be perverse. It has therefore not occasioned a miscarriage of justice. I am of the view that the decision of the learned trial judge in respect of the appellant’s claims would have been same even if the parties were given hearing before a decision was taken on the claims of the appellant. For this reason, I can not fault the propriety of the learned trial judge’s finding on page 71 of the record of appeal, that is, the respondent cannot be an agent of the University of Jos or the University of Jos Consultancy Services Division. This issue is hereby resolved positively.
On the whole, I find no merit in the appeal of the appellant. All the issue raised by the parties have been resolved against the appellant. The appeal fails in its entirety. Accordingly I affirmed the judgment of the trial court. I order no cost in the circumstances of the case before the trial court, and this Court.

RAPHAEL CHIKWE AGBO J.C.A.: I have read in advance the judgment delivered by Bdliya, JCA and I agree with him that there is complete want of merit in the appeal. I too dismiss the appeal and uphold the judgment of the trial court. I make no order as to costs.

PETER OLABISI IGE, J.C.A.: I have read the Judgment of my learned brother Bdliya, JCA just delivered. I am in agreement with the conclusion that the appeal has no merit. I too will dismiss it and it is hereby dismissed. I abide with the order on costs made by my Lord, Bdliya, JCA.

Appearances

B.S. Ngyou Esq.For Appellant

AND

Prof. S.S. Shikyil Esq.For Respondent