ALFA AYEGBA ABRAHAM -VS- MAINSTREET BANK

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE

DATE: 14th JULY, 2017 SUIT NO: NICN/ABJ/167/2014

BETWEEN

ALFA AYEGBA ABRAHAM ……. CLAIMANT

AND

MAINSTREET BANK ……. DEFENDANT

REPRESENTATIONS

E. Arewa, Esq for the Claimant.

Zaidu Abdullahi, Esq for the Defendant.

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimant vide a General Form of Complaint dated 18^th June, 2014 and filed same day asking for the following reliefs:

A DECLARATION that the termination of the employment of the Claimant by the Defendant has no nexus or connection with the allegation of fraud, breach of trust and/or forgery leveled against the Claimant by the Defendant.
A DECLARATION that the Claimant is entitled to all his salaries and allowances as stated in the terms of employment from August 2011 – February, 2014
A ORDER directing the Defendant to pay the Claimant the sum of N51,162,425.32 (Fifty One Million One Hundred and Sixty Two Thousand Four Hundred and Twenty Five Naira Thirty Two Kobo) being the total sum of the Claimant’s salaries, allowances and statutory CXlaimant’s Retirement Saving Remittances (Pension Savings) short paid/or withheld by the Defendant.

AN ORDER directing the Defendant to forthwith allow the Claimant to operate and/or carry out transaction on his Personal Current Account (Salary Account) maintained with the Defendant.
The sum of N2,000,000.00 (Two Million Naira) being the cost of this suit.

SUMMARY OF FACTS

The Claimant, a staff of the Defendant who was employed by the defunct Afribank in 2008 was reemployed by Mainstreet Bank Limited in August 2011 after Afribank was acquired and taken over by AMCON which renamed it Mainstreet Bank. His employment was confirmed with effect from March, 2012. Sometime in September, 2012, Defendant suspended the Claimant on allegation of fraudulent transfer of funds to the tune of N1,674,134.49 (One Million Six Hundred and Seventy Four Thousand one Hundred and Thirty Four Naira and Forty Nine Kobo). At the end of police investigation, Defendant summoned Claimant to appear before a panel. Subsequently, the appointment of Claimant was terminated vide an instrument dated February 17^th2014.

On their part, Defendant, while admitting that Claimant was in their employment until the termination of his appointment, states, however, that Claimant merited the termination of his appointment having being negligent to the extent of compromising his password thereby leading to the financial fraud committed against the Defendantwhich caused the Defendant great financial loss.

COMMENCEMENT OF HEARING

Hearing commenced on the 4^th May, 2015 to which the Claimant testified for himself as PW1 through whom they tendered all their exhibits. They thereafter closed their case on 3^rd June, 2015.

Defendant opened their defence on 15^th December, 2015 by calling their sole witness, one Aloysius Chukwumaas DW1 through whom they tendered all their exhibits. Thereafter, they closed their case.

DEFENDANT’S FINAL WRITTEN ADDRESS

In Defendant’s Final Written Address dated 27^th May, 2016, Counsel on behalf of Defendant formulated a sole issue for determination, that is:

Whether from the facts of the case the Claimant has proved his case to be entitled to the reliefs sought.

ARGUEMENT

Learned Counsel submits that the Claimant’s claim borders on the termination of employment which the Claimant’s position is that the termination of employment has no nexus with the allegation of fraud or forgery as alleged. The Claimant in a bid to prove this allegation tendered in evidence 2 Exhibits which is letter of invitation to attend disciplinary committee meeting, and also letter of termination of employment which exhibits do not in any way support the claim of the Claimant as the document were just dumped before the court without demonstrating the purpose for which they were tendered and they are of not probative value. He refers Court toMAKU V. ALMAKURA (2016) 5NWLR Pt. 1505 Pg 201 at 221-223

Learned Counsel submit further that the documents tendered by the Claimant are not tied to any aspect of the case of the Claimant. The law is trite that it is not the duty of the Court to do so. He refers Court toINIAMA V. AKPABIO (2008) 17NWLR (Pt. 1116) 225 at 299, Para. D-Fas follows:

Where a party has the burden of specifically relating or linking each of the document to specific parts of their case, it is inconceivable to argue that the several bag of bundle of document metamorphosed into exhibit (b) 4 to 32(b) could just be dumped on the Tribunal to sort them out. In the event that theAppellant’s case is built on affidavit evidence, the Court canneither be saddled with nor can it suomoto assume the partisan responsibility of tying each of such huge bundle of documentary evidence to specific aspect of the Appellant’s case of malpractices alleged in Pleadings when they have not done so themselves

That conversely, the Defendant has proved that the termination of appointment has direct nexus with the allegation of forgery, fraud and password compromise as evidenced from facts elicited through cross examination on which there are legion of authorities that facts admitted during cross examination can be used against whom they are elicited from. He refers Court toFRN V. SANI (2014) 16 NWLR (Pt 143) Pg 299 at 332 – Pg332

That the onus is on complainant toshow how the Defendants were wrong in terminating hisemployment which the complainants have failed to so do.He refers Court to WESTAFRICAN OFF SHORE LTD V ARIRI (2015) 18 N.W.L.R part (1490)page 177 at 197-1 98. He also refers Court to Section 19 the Human Capital Disciplinary Manual of the
Defendant which states offences that would lead to
termination of appointment as follows:

(iv) Divulging Confidential Information, breach of the Oath of

Secrecy;

(vii) Password Compromise

(ix) Involvement in any type of conduct which in the opinion of the bank is capable of negatively affecting the corporate image of the bank, whether or not performed in the course of employment with the bank.

It is the submission of Learned Counsel that the Claimantbreached the provision of the Defendant’s Human CapitalDisciplinary Manual especially Section 19 paragraphs iv, vii and ix which formed part of the terms of his employment contract when he allowed his password to be compromised.

That in an action for wrongful dismissal from employment, the burden is always on the Claimant to prove the terms and conditions of his contract of employment and in what manner the said terms where breached by the employer. He refers Court toANGEL SPINNING & DYEING LTD V. AJAH (2000) 13 NWLR (Pt. 685) 532. That the law is trite that willful disobedience of a lawful and reasonable order of an employer by an employee is a definite act of misconduct which attracts the penalty of summary dismissal because such willful disobedience is a reflection of a total disregard of an essential condition of a contract of service, namely, that the servant must obey a proper, reasonable and lawful order of the master, in default of which their contractual relationship cannot be expected to continue. He refers Court toU.B.N Pic V. SCARES (2012) 11 NWLR (Pt. 1312) Pg 557 C.A Ratio 8. One of the features of a contract of employment is thatthe servant is expected always to be of good behaviour and
conduct by diligently serving the employer and protecting the
employer’s property and to be in good working relationship with
other employees. Should there be a breach of that agreement by
any of the parties, each party has the right to terminate the
agreement in accordance with the terms of the contracts. Furthermore, Defendant had given the Claimant fair hearing before dismissal by setting up Disciplinary Committee of Inquiry which recommended the termination of the Claimant’s service after proper investigation. He refers Court to BABA V. N.C.A.T.C (1991) 5 NWLR (Pt. 192) 388 P.36 Paras C-G) where it was held thus:

Once the panel concludes its inquiry and makes up its mind that any point had prima facie been made out which points to the fault of any person, the employer must first inform such an employee of the case against him and give him the opportunity to refute, explain or contradict it or otherwise exculpate himself by makinganyrepresentations ordefence thereto before the employer can lawfully use those points as basis for dispensing with his services”

He also refers Court to Section 17.6 of the Defendant’s Human Capital Disciplinary Handbook paragraph vi which states thus:

Staff dismissed from the Bank’s employment shall forfeit all accrued benefits in line with the staff Handbook

That Claimant was dismissed from his employment based on the gross misconduct and negligent in the course of discharging his duty.

Learned Counsel submits that the facts of this case speak for itself and the onus is on the Claimant to disprove negligence.When a thing is shown to be under the management of a Defendant or his servants and an accident is such as does not occur in the ordinary course of events, if the persons who are in management exercise proper care or diligence, then in the absence of any explanation by those in management as aforesaid as to how the accident happened, the accident is presumed to occur due to lack of care. Thus, negligence is presumed in such cases because in such cases, negligence is inferred to have resulted from the want of care by the persons in the management or their agents or servants. He refers Court toP.S.H.S.M.B. V. GOSHWE (2013) 2 NWLR (Pt. 1338)Pg387.Moreso, the doctrine of “Res Ipsa Loquitur” applies when the facts stand unexplained and therefore the natural and reasonable, not conjectural inference from the facts, shows that what had happened is reasonably to be attributed to some act of negligence on the part of somebody. That is some want of reasonable care under the circumstances.In the case of Lochgelly Iron & Coal Co. V. McMillan (1932) AC562, LORD WRIGHT explained negligence thus:

In strict legal analysis, negligence means more than needles or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owed

He therefore urged thisHonourable Court to hold that the Claimant was negligent by allowing his password to be compromised and which resulted to the financial loss suffered by the Defendant.That Court should dismiss the Claimant’s suit in its entirety same being frivolous, gold digging and unfounded with substantial cost against the Claimant.

CLAIMANT’S FINAL WRITTEN ADDRESS

In Claimant’s final written address dated 28^th September, 2016 and filed same day, Learned Counsel on behalf of Claimant formulated four (4) issues for determination, that is:

Whether the disciplinary hearingconstituted by the Defendant is the appropriate forum for the trial of the allegation of criminal misconduct leveled against the Claimant
Whether, in the light of the evidenceadduced in this suit, this Honourable Court can arrive at the conclusion that the termination of the employment of theclaimant by the defendant was based on theallegation of fraud leveled against the Claimant.

iii. Whether the Claimant was entitled to hissalaries and allowancesduring the periodof his suspension

Whether the defendant paid the claimantall the Claimant’s entitlements as stipulated in the letter ofemployment(exhibit”A5″)and whether the claimant isentitled to the sums withheld/or unpaid bythe defendant to the claimant and accessto his personal current account (salaryaccount) maintained with the defendant.

ARGUMENT

ON ISSUE 1

Whether the disciplinary hearingconstituted by the Defendant is the appropriate forum for the trial of the allegation of criminal misconduct leveled against the Claimant.

Learned Counsel submits that the allegations leading to the termination of the appointment of the Claimant bordered on criminal offence on which the disciplinary committee of the Defendant has no power to try the Claimant on. He refers Court to I.H.A.B.U.M.B V. Anyip (2011) 12NWLR (Pt.1260) 1 @2.

That assuming without conceding that the Court finds, as stated by Defendant, that Claimant was suspended because his password was used to defraud Defendant, it is yet to be seen in this suit that such that offence and the penalty imposed are specifically stated in the terms of the employment contained in the letter of appointment. Moreso, the Human Capital Disciplinary Manual, Exhibit B, was never contemplated in Exhibit A. Therefore, the preposition that Claimant admitted the misconduct is of no moment.

He therefore urged the Court to resolve this issue in their favour.

ON ISSUE 2

Whether, in the light of the evidence adduced in this suit, this Honourable Court can arrive at the conclusion that the termination of the employment of theclaimant by the defendant was based on theallegation of fraud leveled against the Claimant.

Learned Counsel submits that Claimant’s averment that he was never committed the outcome of the disciplinary committee was never denied by the Defendant. That on the face of Exhibit A10 which is the letter of termination, no reason was given for the termination.

It is the submission of Learned Counsel that there is no nexus between the termination of his employment and the allegations leveled against him.

ON ISSUE 3

Whether the Claimant was entitled to hissalaries and allowancesduring the periodof his suspension.

Learned Counsel, while urging the Court to dispense with Exhibit B on the ground that it is a document that failed to disclose the name of the maker and it is unsigned, submits that Claimant is entitled to his salary during the period of his suspension. He refers Court to Mobil Producing (Nig) Unltd V. Udo (2008) 36 WRN 56 @ 76.

He therefore urged the Court to hold that the Claimant was entitled to his salaries and allowances during the period of his suspension from the month of September, 2012 to February, 2014 when his employment was terminated.

ON ISSUE 4

Whether the Defendant paid the Claimantall the Claimant’s entitlements as stipulated in the letter of employment(exhibit”A5″)and whether the Claimant isentitled to the sums withheld/or unpaid bythe Defendant to the Claimant and accessto his personal current account (salaryaccount) maintained with the Defendant.

Learned Counsel, while referring Court to Exhibits A5, A13, and paragraphs 8 – 12; 20 – 24 of Claimant’s Statement of Facts, submits that Claimant has been able to show that Claimant was never paid his salary in full during the pendency of his employment.

He therefore urged this Honourable Court to resolve this issue in their favour.

DEFENDANT’S REPLY ON POINT OF LAW

On receipt of Claimant’s final written address, Defendant filed a reply on point of law on which Learned Counsel on behalf of Defendant adumbrated further on issues already canvassed in their final written address as well as issues raised by Claimant in their final written address.

COURT

Having gone through the Claim of the Claimant, Defendant’s defence, evidence adduced by both sides as well as the robust arguments by Counsel to the Claimant and Counsel to the Defendant, this Court while adopting all the issues formulated by both Counsel, has distilled three (3) issues for determination, to wit:

Whether the termination of the Claimant was wrong and unlawful.

Whether the suspension of the Claimant without salary was wrong and unlawful.

Whether from the determination of 1 and 2 above and evidence adduced before this Honourable Court, Claimant is entitled to all the reliefs sought.

Before addressing the issues distilled by the Court above, this Court wishes to state that having adopted all the issues raised by both Counsel, this Court will address such issues, when necessary, in the body of its judgment.

That said, this Court shall proceed to address the issues distilled above.

ISSUE 1

Whether the termination of the Claimant was wrong and unlawful.

In employment matters, there are three basic categories of employment: (i) employment with statutory flavour (ii) contract of employment (iii) master –servant employment.

Under employment with statutory flavour, the manner and way of determining the employment is not limited to what is stated in the employment letter but extends to the manner and way provided for by law or statute governing the employment. The import is that the Court must pierce the veil of the employment letter and look beyond it to the statute governing the employment.

On the other hand, contract employment, by nature, is a temporary and non-pensionable appointment for a specific period as distinct from appointment on pensionable terms. See Mobil producing (Nig) Unltd v. Asuah (2001) 16NWLR (Pt. 740) 723. Contract of employment is usually embodied in a formal document which provides for the manner and way such employment is determined.

Lastly, master –servant employment is an employment relation which can be determined at any time at the pleasure of the employer. This is derived from the saying – he who hires, has the power to fire at any time. Master-servant relation is prevalent in the private sector. In Master –Servant employment, whether or not an employee’s appointment is terminated with reason, the Court does not compel reinstatement for you cannot force an employee on an unwilling employer. Hence, the remedy available to the employee is damages where the court finds that the termination of his employment was unlawful. See Imoloame v. WAEC (1992)9NWLR (pt. 265) 303.

From all available facts in the case herein, the employment of the Claimant is the common law employment of master and servant. Therefore, in the course of this judgment, even if the Court finds that the termination of the appointment of the Claimant is wrongful, it cannot order reinstatement. At best, the remedy of the Claimant will be in damages.

In master – servant employment relation, the master has the power to fire with or without reason. However, where an employer fires an employee with reasons, the Court is bound to look at such reasons whether they are wrong or unlawful. Granted, from the evidence adduced before this Honourable Court, Defendant stated that Claimant’s suspension was predicated on his negligence which resulted into the commission of financial fraud against the Defendant but on the face of the termination letter tendered before this Honourable Court, that is Exhibit A10, no reason is stated for the termination of the employment of the Claimant. As earlier said, the Defendant has the power to fire with or without reason. Therefore, it is not out of place for an employer in master – servant employment to terminate an employee without reason. Being that the reason proffered by the Claimant was not in the body of the letter of termination but the Defendant proffered it on institution of this case, this Court can as well regard it as an afterthought. However, being that both Claimant and Defendant made heavy weather of the incidence of fraud committed against the Defendant and the series of events which unfolded thereafter, this Court will succumb to the temptation of addressing same even if it is for academic purpose. The Claimant’s ordeal was set off after the Defendant, a banking institution, discovered that it had been defrauded of a huge sum of money. Arrests were made and statements were taken.During the pendency of the investigation, Claimant was placed on suspension. Subsequently, the police wrote a letter to the Defendant in which the Claimant was not implicated of any wrong doing but one MrsKyolaHembafanMaidodo, Head of Operations of the Defendant bank, was fingered as the arrow head who single handedly carried out the fraud and also cloned the password of the Claimant as well as that of one MrsJustinaChukwu for the purpose of perfecting her plans. See Exhibit A8. Thereafter, the Defendant set up a panel to which the Claimant was invited. The Claimant’s employment was thereafter terminated.

The contention of the Claimant is that his appointment was terminated on ground of allegation which is criminal in nature and being criminal the Defendant lacked the power to determine criminal allegation against him. He refers Court to I.H.A.B.U.M.B V. Anyip (2011) 12 NWLR( Pt.1260) 1 @5.On their part, the position of the Defendant is that the termination of his employment is in connection with the allegations of forgery, fraud and password compromise to which Claimant was negligent in compromising his password which led to the bank losing huge sum of money. He refers Court to Section 19 of the Human Capiatal Disciplinary Manual which states offences that could lead to termination of appointment are as follows:

Divulging confidential information, breach of oath of secrecy

vii. Password compromise

Involvement in any type of conduct which in the opinion of the bank is capable of negatively affecting the corporate image of the bank, whether or not performed in the course of the bank.

The case herein is reminisce of the decision of the Supreme Court in Samson Olarewaju V. Afribank (Nig) Plc (2001) 13NWLR (Pt.731) 691. The Appellant in the case of Samson Olarewaju (supra), on allegations of fraud, embezzlement of money and other sundry allegations, was suspended. Before his suspension he was queried and he responded. A disciplinary committee was set up to which the Claimant was summoned. A complaint was lodged at the police which set off series of investigation. Thereafter, Appellant was dismissed. The supreme Court, in dismissing the Appellant appeal, held inter alia:

Where a person is accused of a criminal offence, he must first be tried in a Court of law where the complaints against him will be examined in public and where he will get a fair hearing as set out in the Constitution. Where the dismissal of a servant is based on a criminal charge or allegation, such allegation must first be proved before the dismissal can stand. In the instant case, Exhibit “D”, the letter of dismissal, did not contain any reasons for the dismissal of the appellant. The letter did not make any allegations of a criminal nature against the appellant.

It is apposite to state here that like the Supreme Court, this Honourable Court wishes to state that Exhibit A10 which is the letter of termination in the case herein, does not contain any reason(s) for the termination of the appointment of the Claimant. The termination letter did not make any allegation of criminal nature against the Claimant.

The Supreme Court, in Olarewaju V. Africbank (supra) went on to hold as follows:

In a pure case of master and servant, a servant’s appointment canlawfully be terminated without first telling him what is alleged against him and hearing his defence or explanation. Similarly, a servant in this class of employment can lawfully be dismissed without observing the principles of natural justice. So, the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence. It depends on whether the facts emerging at the trial prove breach of contract.

It is not necessary, nor is it a requirement under section 33 of the 1979 Constitution, that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. Where employee has been found guilty by a disciplinary] committee to have committed a gross misconduct bordering on criminality, the master has a choice either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily. In other words, prosecution before a court of law, in the circumstances, is not a sine qua non for summary dismissal.

The decision of the Supreme Court above may be quite confusing but it is not confusing after all. The effect is that whereas the law is trite that a person accused of criminal offences must be tried in a Court of competent jurisdiction before an employer can take disciplinary action against him, in master – servant employment, the employer is not barred from taking disciplinary action against the employee if there are elements of gross misconduct and or other offences bordering on the breach of the terms and conditions of the employment in the body of the criminal allegations. It is in this vain this Court wishes to state that even though the allegation of fraud to which the Defendant lost money to the tune of N10,265,943.31K is criminal in nature, if the Defendant bank finds that the acts which led to such a colossal financial lost was as a result of the negligence of the Claimant, they have the power to mete out disciplinary action against the Claimant.

Consequently, this Court finds and I so hold that the termination of the employment of the Claimant was not wrong nor is it unlawful.

ON ISSUE 2

Whether the suspension of the Claimant without salary was wrong and unlawful.

From the evidence adduced in this case, the Claimant was placed on suspension and the suspension was not reversed nor was the Claimant paid his salary during the period of suspension until his appointment was terminated. The suspension, from the face of Exhibit A7 was in September, 2012 whereas the termination was in February, 2014. For these periods, Claimant was on zero salary. The Defendant argument is that from the provision of Exhibit B which is the Human Capital Manual, during suspension, an employee is not entitled to payment of wages.

Flowing from the above, this Court will like to address the issue of payment of basic salary and payment of bonuses/allowances separately. On payment of basic salary, I think the draftman of rules and regulations like the Human Capital Manual should acquaint himself with the revolving labour laws and Court decisions on same to be properly guided in drafting rules and regulations of this nature. This Court does not encourage the practice of zero salary during the period of suspension. Rather, what this Court encourages is, at worst, the person suspended should be placed on half salary pending when the suspension is lifted. A suspension does not terminate an employment. Rather, the employment subsists. To say that a person placed on suspension is not entitled to his salary is tantamount to saying that the suspension has already terminated his employment. There are three (3) basic needs of man besides his spiritual need. They are food, shelter and clothing. When a person/employee is placed on suspension, his rents, feeding, clothing and responsibilities towards his family do not go on suspension. He needs the basic salary to take care of his basic needs, and I so hold. In this regard, the provision of the Human Capital Manual on zero salary during suspension, inasmuch as such provision is unreasonable, offensive and inimical to the very tenet of justice is null, void and of no effect whatsoever.

Granted, Court does not meddle in agreement freely entered by parties. In the same vain, the law is trite that Court cannot enforce illegality nor can it enforce an unlawful contract. It is in this vain that the Court cannot sustain the provision of the Human Capital Manual being an unlawful provision.

Consequently, this issue is resolved in favour of the Claimant.

On payment of bonuses and allowances, this Court wishes to state that for all intents and purposes, bonuses and allowances are paid to active workers not passive workers except in peculiar circumstances. Granted, and as earlier held by the Court, during the pendency of the suspension, Claimant was still an employee of the Defendant. However, he was not an active worker but a passive worker. This Court, having earlier found that the termination of the employment of the Claimant was not unlawful, Claimant is, therefore, not entitled to his bonuses and allowances during the period of his suspension but his basic salary, and I so hold. This Court will be quick to add that the position of the Court herein does not obviate, defeat or overrule earlier decisions of this Honourable Court whereby the Court ordered payments of bonuses and allowances where it found the suspension as well as the termination to be wrong, unlawful, null, voidand of no effect whatsoever. The point here is that had the Court found the suspension and/or the termination of the Claimant’s employment to be wrong and unlawful, the Court would be more than willing to grant the relief sought in bonuses and allowances if not as of right but as a measure to estop the Defendant from benefitting from its own wrong.

ON ISSUE 3

Whether from the determination of 1 and 2 above and evidence adduced before this Honourable Court, Claimant is entitled to all the reliefs sought.

The law is trite that civil cases are decided on the balance of probabilities, that is, preponderance of evidence. The Court arrives at this by placing the totality of evidence by both parties on an imaginary scale to determine which side’s evidence is heavier and accordingly preponderates. The party whose evidence is heavier succeeds in the case. See DrUseniUwah&Anor V. DrEdmundson T. Akpabio&Anor (2014) 2MJSC (Pt.11)108 @113.Moreso, the success or failure of the case of the Claimant is predicated first on the nature of his pleadings and secondly the evidence led in support of his averment. In the same vain, the success or failure of the defence of the Defendant is based on the averment in his statement of defence and the evidence led in support thereof. See RamonuRufaiApena&Anor V. Oba FataiAileru&Anor (2014) 6 – 7 MJSC (Pt.11)184 @ 188.

Besides the reliefs sought in salary, bonus and allowances, there is the relief on Claimant’s Retirement Saving Remittances (Pension Savings) short paid and/or withheld by Defendant. See,in particular, Relief 3 in Claimant’s originating process.From the evidence adduced in this case, the Court has no challenge in finding that Claimant was short paid in his monthly salary. The argument of Defendant that Claimant’s contention that his salary was short paid is an afterthought cannot be sustained by this Honourable Court. This is so because the shortage in salary payment was a continuous one which never abated. On withheld/shortage of pension remittance, from evidence adduced in this case, the understanding of the Court is that the contribution to Claimant’s pension is 15% of Claimant’s salary to which Claimant will contribute 7.5% and Defendant 7.5% to make up the 15%. From the face of Exhibit A5, the monthly salary of the Claimant is stated to be N396,150.00during the period of probation and N417,000.00 on confirmation of employment. From Exhibit A6, the employment of Claimant was confirmed which entitles him to a monthly salary of N417,000.00 (Four Hundred and Seventeen Thousand Naira) monthly salary. From the combined effect of Exhibits A5, A6 and A11 which is Sigma Pensions Limited, this Court is satisfied that Defendant is indebted to the Claimant in pension remittance to the tune of N340,180.63 as stated and tabulated in Claimant’s statement of Claim, and I so hold.

With respect to other alleged withheld allowances and bonuses claimed by the Claimant, Claimant did not adduce sufficient evidence capable of moving the Court in the grant of same.

Consequently, and from all that have been said above, the Claim of the Claimant succeeds in part as follows:

CLAIM 1 Fails.

CLAIM 2 Succeedsonly to the extent that Claimant is entitled to his basic salary only from September 2012 to February, 2014 being the period of his suspension

CLAIM 3 Succeedsonly to the extent that Defendant shall pay Claimant the sum of N9,466,981.88 being his basic salary for the period of suspension as well as the difference in payment shortages in Claimant’s salary as tabulated in Claimant’s Statement of Claim, and the sum of N340,180.63 being the shortage in Claimant’s pension remittance as tabulated in Claimant’s Statement of Claim.

CLAIM 4 Succeeds

CLAIM 5 Fails. There is nothing before Court to substantiate same.

For the avoidance of doubt, the Court hereby declares/orders as follows:

THE COURT HEREBY DECLARESthat Claimant is entitled to his basic salary from September 2012 to February, 2014 being the period of his suspension

THE COURT HEREBY ORDERS Defendantto pay Claimant the sum of N9,466,981.88 (Nine Million Four Hundred and Sixty Six Thousand Nine Hundred and Eighty One Naira Eighty Eight Kobo) being his basic salary for the period of suspension as well as the difference in payment shortages in Claimant’s salary as tabulated in Claimant’s Statement of Claim, and the sum of N340,180.63 (Three Hundred and Forty Thousand One Hundred and Eighty Naira Sixty Three Kobo)being the shortage in Claimant’s pension remittance as tabulated in Claimant’s Statement of Claim.

THE COURT HEREBY ORDERS the Defendant to forthwith allow the Claimant to operate and/or carry out transaction on his Personal Current Account (Salary Account) maintained with the Defendant.

I shall make no order on cost. Parties should bear their respective costs

Judgment is hereby entered accordingly.

……………………………………

HON. JUSTICE M.N ESOWE