Amrmstrong Ochonogor Abamba -VS- Guinness Nigeria Plc

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP HON. JUSTICE I.S GALADIMA

DATE: 21^ST JANUARY 2020 SUIT NO: NICN/OW/28/2018

BETWEEN:

ARMSTRONG OCHONOGOR ABAMBA …………………. CLAIMANT

AND

GUINNESS NIGERIA PLC …………………. DEFENDANT

REPRESENTATION:

Professor U.U Chukwumaeze (SAN); L.C. Onumajuru; U.C Ekegha for the Claimant.
J.O Omotiba for the Defendant.

JUDGEMENT:

This Claimant was purportedly employed by the Defendant Company in October, 2010. Unfortunately his employment was terminated following an allegation of a crime of murder made against him in the course of his duty. He alleges that the Defendant Company through her Security Manager, Osisioma Branch, along with the Human Resources Manager of the said Branch, physically took him to the Abia State Police Command on a purported invitation by the police. Accordingly, this was in connection with the investigations surrounding the death of the First City Monument Bank (FCMB) Cashier, Mr. Obasi Udochukwu, who was within the Defendant’s premises at Osisioma Aba Branch before his sudden demise. The Claimant was therefore suspected and accused of the murder of the said Cashier, charged to Court, tried and detained for 7 years in prison custody before his eventual exoneration by the law Court. The Claimant’s grievance is that he was abandoned by his employer, the Defendant, all through his ordeal during and post the murder trial particularly since the suspicion arose originally, in the course of carrying out his lawful duty. Accordingly, the act of the Defendant Company in abandoning him and subsequently issuing him with a letter of indefinite suspension and termination letter without giving him the opportunity to defend himself in the criminal allegation, was prejudicial, unfair and a breach of his right to fair hearing. He was purportedly never arraigned before any disciplinary panel set up by the Defendant Company to date.

In response, the Defendant Company denying all these, contends that this Honourable Court must dismiss this suit in its entirety as same is unmeritorious, a gold digging exercise and bereft of any cognizable legal basis.

Consequently, this Claimant’s suit was filed in this Court by an amended complaint and Statement of facts made the 30^th of November, 2018 for the following reliefs:

An order of the Honourable Court declaring the Defendant’s purported letter of indefinite suspension dated 16^th day of May, 2012 issued to the Claimant as unlawful, unwarranted, arbitrary and accordingly null and void.
A declaration of the Honourable Court that the act of the Defendant in abandoning the Claimant who is her staff in his most time of need is wrongful and against the his right as an employee of the Defendant.
An order of the Honourable Court declaring as illegal, null, and void, the act of the Defendant in suspending the Claimant indefinitely without bringing him before any disciplinary panel of the Defendant and without any justifiable reason.
An order of the Court declaring as illegal, null, and void, the purported termination letter sent to the Claimant’s email by the Defendant during the pendency of this suit which the said termination letter was purposely made to further victimize, harass, and oppress the Claimant without any justifiable reason.
An order of the Honourable Court directing the Defendant to pay to the Claimant all his accrued/arrears of salaries and allowances (emoluments) at the rate of N123, 283. 52 only being his monthly salary from May, 2012 till judgment is entered in this suit and also till judgment debt is fully satisfied.
An order of the Honourable Court directing the Defendant to immediately re-instate the Claimant and place/promote him to the appropriate position he would have been as though he was not suspended and pay him salary differential or; To pay the Claimant a commensurate discharge sum according to the terms of his employment or the Law which ever applies.
An order of the Court directing the Defendant to pay the sum of N10, 000,000.00 (Ten million Naira) only as compensation and general damages for the trauma suffered as a result of abandonment and neglect done to the Claimant during the period of the criminal prosecution and wrongful suspension by the Defendant.

Accompanying this complaint are the amended statement of facts, the list of the Claimant’s witnesses, and the list of documents to be relied at trial together with the front loaded copies of such documents. The Claimant also filed a Reply to the Defendant’s Statement of Defence on the 15^th of November 2018 of 35 paragraphs as well as a further deposition on oath of 37 paragraphs.

In reaction, the Defendant entered a conditional appearance and also filed its processes on the 5^th of October, 2018.

THE CLAIMANT’S CASE:

Upon the close of pleadings by these parties, the Claimant’s case was opened on the 31^st of January 2018. He, Armstrong Ochonogor Abamba, testified on his behalf as CW1 and adopted his depositions dated 12^th July, 2018 and 15^th November 2018. He tendered a total of 7 exhibits lettered exhibits C1 – C7 (a) (b). He was duly cross examined by the Defendant’s team on the same day. The list of the documents tendered by him are:

Exhibit C1 – offer of appointment letter.

Exhibit C2 – Letter of indefinite suspension.

Exhibit C3 – CTC of Judgment of the High Court Abia State in State v. Armstrong Ochonogor Abamba.

Exhibit C4 – Letter from the Claimant’s Solicitor to the Defendant.

Exhibit C5 – Reply Letter from the Defendant to the Claimant’s Solicitor.

Exhibit C6 – Letter of termination of appointment by the Defendant Company to the Claimant.

Exhibit C7 (a) – Certified true copy of the ruling of a Magistrate Court.

Exhibit C7 (b) – CTC of Record of Proceedings.

Relevant portions of his testimonies and responses under cross examination may be analyzed in the course making my findings.

The second witness (Ochonogor Charles Ebogbe), testified as CW2 on the 19^th of March, 2019. He too adopted his deposition dated the 30^th of November 2018. Thereafter the Claimant’s case was closed.

THE DEFENDANT’S CASE:

The Defendant opened its case on the 19^th of March, 2019. Oluwaseun Adekunle (The Payroll and Employee Relations Manager in the Defendant Company), testified as DW1 and relied on his deposition dated 11^th October, 2018. He tendered a total of eight (8) exhibits and was cross examined by the Claimant’s Counsel on the 13^th of May 2019. Exhibits D 1 – 5 were admitted and marked by this Court. They are:

Exhibit D1 – Termination of appointment letter dated 31^st March, 2018.

Exhibit D2 – Termination of appointment/final account Letter dated 31^st May, 2018.

Exhibit D3 – Zenith Bank Cheque dated 28^th May, 2018.

Exhibit D4 – Emails dated 28^th, 30^th, and 31^st May, 2018.

Exhibit D5 – Certified True Copy of judgment in suit NO: HOS/16C/2012.

Exhibit D6 – Conditions of Service for working in Guinness for non-management staff, 2010.

Exhibit D7 – Guinness Nigeria Disciplinary Policy, November, 2010.

Exhibit DW8 (a) and (b) – Email communications between the Claimant and Defendant.

The second Defendant’s witness Chukwukere Obi, testified as DW2 on the 11^th of July, 2019. He relied on his deposition of 11^th October, 2018 and tendered a document which is the Certified True Copy of the evidence of this Claimant before the High Court of Abia State. The same was admitted by the Court as Exhibit D9. He was duly cross examined by the Claimant’s Counsel whereupon the Defendant closed its case. The Defendant’s Counsel announced that he had already filed his final written address on the same day and so the Claimant’s Counsel elected to file his subsequently. Eventually, the Claimant filed his on the 28^th of August, 2019. They mutually adopted their respective written addresses on 4/11/2019 whereupon the suit was adjourned to today for delivery of this here judgment.

THE DEFENDANT’S FINAL ADDRESS AND SUBMISSIONS:

Counsel for the Defendant formulated two issues for determination in this case as follows:

Whether the Claimant’s cause/reliefs are proven or sustainable within the purview of his pleadings, evidence adduced and the law governing master/ servant relationships; and
Whether the Claimant’s vague claim for damages, be it special or general damages is legally sustainable in the context of master/servant relationship.

On issue 1 above, learned Counsel argued that in a master/servant relationship which does not enjoy statutory flavour, the Claimant cannot force himself on an unwilling Defendant and as such his reliefs 1, 3 (a) and 5 are wholly unmaintainable. He cited inter alia, OSISANYA VS AFRIBANK (NIG) LTD (2001) 29 NSCQR 282.

He further argued that under Nigerian Labour Law, employment can either be those regulated by statue or those under a common law relationship of master/servant. Where the terms and conditions of an employment are specifically provided for by statue or regulations made under the statue, it is accordingly said to be an employment under the statue or has statutory flavor but where this is not so, it is a master/servant relationship. He cited amongst others, OBAJE VS N.A.M.A (2014) ALL FWLR PT 732 PG 1811 @1826.

Counsel continued his argument that since it is relationship of master/servant, dismissal or termination of employment cannot be declared unlawful or illegal or null and void as sought by the Claimant in this case, which is a remedy only available to an employment with statutory coloration . He cited ESIEVWORE VS NEPA (2002) FWLR PT 732 PG 1811 @ 1826.

Continuing on, he argued that having determined the sort of relationship here between these parties to be master/servant, the general rule is that non-compliance with any procedure laid down for the termination/dismissal can only be declared wrongful but never unlawful. He cited and relied further to the case of EZE VS SPRING BANK PLC (2012) ALL FWLR PT 609 PG 1076. He thus contented that throughout the gamut of his pleadings, the Claimant failed to plead the terms of his contract of service, and his employment can only be adjudged as a master/servant relationship. He relied on OGUNDIPE VS NATIONAL TELECOM LTD (2006) NWLR PT 817 PG 613 R-5. It is therefore Counsel’s believe that in a master/servant relationship, both parties have an equal and unfettered right to terminate the contract of employment or service, at any time and for no reasons at all. He relied on the case of TEXACO NIG LTD VS KEHINDE (2002) FWLR PT 94 PG 143 @ 160, TEXACO OVERSEAS PETROLEUM UNLIMITED VS OKUNDAYE (2003) FWLR PT 136 PG 961 @ 972. He cited the case of ESSIEVWORE VS NEPA (SUPRA) arguing that in an employment with statutory flavour, an employee must be terminated in the manner prescribed by statute and any manner inconsistent with that of the statute is null and void; but in cases governed by an agreement of parties and not by statue, termination of appointment will be in the form agreed upon. Any other form connotes wrongful termination but not to be declared null and void.

Counsel further submitted that where any of the parties exercises the right under the contract to terminate the employment, any breach by the manner of termination renders the termination only unfair or wrongful but the employment remains terminated and cannot be reviewed. Given the nature of this Claimant’s employment therefore, his reliefs 1, 3 (a) and 5 which seek that his suspension and subsequent termination be declared null and void as well as a consequential order of reinstatement, cannot be granted as this Court lacks the power so to do.

Counsel added that the only way the Claimant’s termination can be faulted is if it is inconsistent with the terms of employment/agreement. He cited the case of GBOBAH VS BRITISH AIRWAY PLC (2017) ALL FWLR PT 908 PG 1913 R-1.

Furthermore, the learned Omotiba stated that in ordinary cases of employment, the master can terminate the contract at any time whether for good, malicious or for no reasons whatsoever. Therefore, the motive for exercising a right to terminate the contract of service of a servant does not render a valid process of such right ineffective. He buttressed his argument with the case of AJAYI VS TEXACO NIGERIA PLC (1987) NWLR PT 62 PG 577. He reemphasized that even with all its coercive powers, the Court cannot force the employer to re – absorb an employee he is unwilling to maintain relationship with since it presumably begun with a consensual contract which got sour. Thus, it is best terminated in a civil, responsible and lawful manner. On this proposition he relied on the case of GBOBAH VS BRITISH AIRWAYS PLC (SUPRA) @ RATIO 3.

He continued that in any event, where an employee complains of wrongful termination, the duty is on him to show the Court that his termination was done in violation of his conditions of service which accordingly, this Claimant failed to establish. In buttressing this point he cited the case of PETROLEUM TRAINING INSTITUTE VS MATTHEW (2012) ALL FWLR PT 623 PG 1949.

Accordingly, this Defendant led credible evidence to establish that the termination of the Claimant’s employment in this case was done in line with the terms and conditions of his employment which was tendered and admitted as exhibit C1. He is certain that by exhibit C1, this Claimant is only entitled to one month’s notice or a month’s basic salary in lieu of notice. Accordingly, the Defendant’s witness had shown that the termination letter tendered by the Claimant which was admitted as exhibit C6 indicated that a Zenith Bank international draft number 10442251 dated 28/05/2018 and in the sum of N36,469.04, was prepared by the Defendant and that this represents one (1) month basic salary in lieu of notice in accordance with the Claimant’s employment terms. For added measures, the original of Exhibit C6 was again tendered by the Defendant’s witness and admitted as Exhibit D3. He said further that the Defendant established that when the termination letter was given to the Claimant on 31/05/2018 when he visited the Defendant’s head office in Lagos, he (the Claimant), refused to accept the termination letter and the offered one month’s salary in lieu of notice. DW 1 had added that the content of the said letter was sent directly to the Claimant’s email which the Claimant tendered and was marked as exhibit C 8 (a) and (b).

Counsel illustrated that further evidence by the Claimant revealed under cross examination that he answered the following questions in the affirmative — that he had a meeting with the Human Resource Manager of the Defendant on the 31^st of May, 2018; that he was presented with a termination letter which he refused to receive and sign for; and the said termination letter was subsequently sent to the Claimant’s email and upon receiving the termination letter, he never acknowledged or returned to the Defendant.

Counsel further submitted that in the above scenario, the Claimant refused the one month’s salary issued to him in lieu of notice by not picking up the cheque for reasons best known to him and that even after sending it to his email, he refused to acknowledge it at the Defendant’s office. Counsel referred to paragraphs 23 and 24 of the Statement of Defence as well as paragraphs 25 and 26 of the written deposition of DW1.

Counsel further contended that the Defendant duly complied with the rules of disengagement of the Claimant’s employment. Accordingly, Exhibit C1 which is the letter of employment of the Claimant, provides that he shall be entitled to a month’s notice or one month’s basic salary in lieu of Notice. Both the termination letter as well as the Zenith Bank draft issued in favour of the Claimant is proof of the fact that the Defendant complied with the conditions set out in the employment letter for the termination of Claimant’s employment.

Counsel reiterated that in this instant case, the Defendant has done all that is required by it in presenting the Claimant one month’s basic salary in lieu of notice as provided for under his letter of appointment. He cited the case of NIGERIAN SOCIETY OF ENGINEERS VS OZAH (2014) ALL FWLR PT 761 PG 1571 R-4.

He submitted that in the end the Claimant’s claims/reliefs must be dismissed, being bereft of relevant pleadings/evidence to sustain them within the purview of the mutual contract of the parties and the law governing master/servant relationship.

Counsel adumbrated that this Court must treat the evidence of CW2 who is the father of the Claimant, cautiously, particularly since in his evidence during cross-examination, he admitted following the son to the Defendant’s office on 31/05/2018. Defendant’s Counsel referred to certain portions of the answers provided by CW2 during cross-examination to conclude that it is settled principle of law that a party is not allowed to approbate and reprobate on one issue as a witness must be consistent. He cited the case of COMPTROLLER – GENERAL OF CUSTOMS VS GUSAU (2017) ALL FWLR PT 911 PG 422 R.7. In Counsel’s reckoning, CW2 initially denied that this Claimant told him he was given an envelope containing the termination of his employment as well as a Zenith Bank Cheque but in another breadth he had stated that his son told him he rejected the envelope. Accordingly, any witness who deliberately testifies falsely on matters within his personal knowledge, ought not to be given any credibility. He cited the case of DAGGASH VS BULAMA (2004) 14NWLR PT 892 PG 144.

Defendant’s Counsel further submitted that in this case, the evidence of the Claimant and his witness are not credible being unworthy of believe as such it is reasonable to excise them in arriving at a just and fair decision. He cited the case of AGBI VS AUDU OGBEH (2006) 11 NWLR PT 990 PG 65 @ 116.

He continued by adding that when the intention of a witness or witnesses as in this case is to mislead the Court by lying on oath, either by denying facts known to them or misrepresenting facts upon which they are questioned, until forced to retract their evidence or contradict themselves by whatever means, their evidence cannot be relied upon because they have by themselves destroyed any rational basis for accepting their evidence in their evidence in part or in total based on credibility. Counsel cited the case of OGUNTAYO VS ADEBUTU (1997) 12 NWLR PT 531 PG 81 @ 94.

He referred further to the Claimant’s written deposition of 12/7/2018 at paragraphs 5, 6 and 7 where he deposed to facts on how the Defendant’s Security and H.R Managers handed him over to the Umuahia Police Command (State C.I.D) and disappeared. Again, in paragraphs 8, 31 etc of the Claimant’s further written deposition of 15/11/2018, he deposed to how the Defendant’s above mentioned staff, handed him over to the police and abandoned him to his fate. These evidence accordingly contradict what was stated in exhibit D6 which is the Certified True Copy of the evidence of the Claimant before the High Court Osisioma in suit HOS/16C/2012 – The State vs. Armstrong Ochonogor where this same Claimant had testified on what happened in the Plant Manager’s office. Learned Counsel thus impressed on this court to juxtapose the evidence of the Claimant at page 3, paragraph 2 of exhibit D6 with his subsequent evidence and testimony before this court. It is thus his submission that the evidence of the Claimant and his witness are comparable to those of witnesses who know the truth but shy away from stating the correct facts within their personal knowledge. As such, they should not be accorded any credibility.

Counsel further believes that the Claimant, in his bid to paint the Defendant black, turned around to accuse the Company of abandoning him in his peak moment of distress. Such is purportedly unfounded even in the face of the testimonies of CW1 and CW2 which were whittled down by their answers under cross examination.

Counsel added that it is settled law that whatever is admitted needs no further proof of. The Defendant in its Statement of Defence and evidence before the Court vividly stated what led to the arrest of the Claimant was a case of murder that happened in the Defendant’s premises at her Osisioma depot. Counsel however added that since the alleged crime was not committed in the course of the discharge of the Claimant’s duty therefore, the Defendant had no part to play in the prosecution and trial of the Claimant, which he (the Claimant), purportedly admitted to when he had mentioned that it was the State that prosecuted him and not the Defendant.

Counsel further submitted that there was no evidence before this Court to substantiate the Claimant’s relief number 2, which seeks for a declaration that the act of the Defendant in abandoning him in his most critical time of need is wrongful, on the face of the overwhelming evidence before the Court that the Claimant was indeed prosecuted by the State for murder and by the subsequent admission of the Claimant and his CW2 that despite this, the Defendant Company never wrote any petition or made any formal complaint against him (the Claimant).

Defendant’s Counsel pointed out that the Claimant amongst his reliefs, prayed the Court for a declaration that the suspension letter issued to him and dated 16/5/2012 is unlawful, unwarranted, arbitrary and accordingly null and void. He submitted in line with his pleadings and evidence that the Defendant acted within the purview of the rules governing the parties’ employment relationship.

He added that the Defendant in defence of the said suspension gave evidence as to the reason behind same on the ground of the absence of the Claimant from duty by reason of the charge of murder against him.

He outlined the following questions as answered by the Claimant in his cross examination:

Question: The last time you were at work was on the 8^th day of May, 2012?

Answer: I was at work on the 8^th day of May, 2012.

Question: you were not at work from the 9^th to the 16^th of May, 2012?

Answer: yes because I was in custody.

Question: from the 9^th of May, 2012 until the 16^th of May, 2018 you were not at your working place?

Answer: yes

He concluded his submission on issue one, by adding that in all, the Defendant was justified to have suspended the Claimant indefinitely in the circumstance which she did so, such suspension is backed by the condition of service and same cannot be said to be unlawful, unwarranted, arbitrary and accordingly null and void.

On issue two which is whether the Claimant’s vague claim for damages be it special or general damages, is legally sustainable in the context of a master servant cause, the learned Omotiba first stated that by way of pecuniary reliefs, the Claimant’s claim is for special damages, general damages and compensation as seen in reliefs 4 and 6 endorsed on his claim. He submitted that claims for damages, being a consequential relief is dependent on the success of the declaratory reliefs and other orders sought. Hence, if the principal reliefs fail, then the consequential reliefs stand to suffer the same fate. Counsel cited the case of YUSUF VS COOPERATIVE BANK LTD (1994) 7NWLR PT 359 PG 676 R-11.

Defence Counsel further submitted that, notwithstanding the inescapable fatal fate of the declarative reliefs sought in this case as argued under issue 1 above, he nonetheless proffers an argument on the issue of damages, emoluments, accrued arrears of salaries and allowances.

Counsel iterated that the claim for special and general damages have been held to be improper heads of claim in breach of contract, a fortiori, master/servant case. He cited OKONGWU VS NNPC (1989) 4 NWLR PT 115 PG 296 R.11, KABEL METAL NIG. LTD VS ATIVIE (2002) 10 NWLR PT 775 PG 250 R.7. He again submitted that in breach of contract cases, the measure of damages is the loss flowing naturally from the breach that is to say such loss that is reasonably foreseen by the parties at the time of entering into the contract. He cited the case of EKPEOGU v. ASHAKA CEMENT CO. (1997) 6NWLR PT 508 PG 280 @293 where Oguntade, JCA (as he then was) held that in a claim for wrongful dismissal, the measure of damages is normally the amount the Claimant would have earned had the employment not been terminated by notice according to the contract, as it is the duty of the Claimant to minimize the damage he sustained as a result of wrongful dismissal. He again cited the case CHUKWUKA VS SHELL PETROLEUM (1993) 4 NWLR PT 289 PG 512 where the Supreme Court accordingly at pg 538 para D-G held that: “Once the Court holds that a servant’s employment was wrongfully terminated, he is entitled to damages. However, the servant is only entitled to what he would have earned over the period of notice required to lawfully terminate the employment. He cited the case of CENTRAL BANK OF NIGERIA VS ARCHIBONG (2001) 10 NWLR PT 492 R7 & 8.

Furthermore, Counsel argued that with respect to general damages and compensation as claimed by the Claimant, the law is now settled that such cannot be awarded in an action for breach of contract as in the instant case, as general damages belong to the realm of torts. Hence, the award of general damages for breach of contract cases are legally unsustainable and liable to be set aside. He cited the case of NDINWA VS IGBINEDION (2001) 5NWLR PT 705 PG 140 R.2 and BARAU VS CUBITS NIG. LTD (1990) 5NWLR PT 152 PG 620 R.10.

Counsel further added that the Claimant in his relief 4 claimed what looks like special damages without any particulars of such special damages in his pleadings. He submitted further that special damages have been held to be a species of damages which the law will not infer from the nature of the act. They are not in the ordinary course of event. The law therefore requires they must be pleaded specifically and proved strictly. To buttress this assertion counsel cited the case of TANKO VS MAI-WAKA (2010) 1 NWLR PT 1176 PG 468 R.7

He continued his submission that the Claimant rather than pleading the particulars of the damages and plead them specifically stated in paragraph 4 of his written deposition accompanying the complaint thus:

“My monthly salary as at April, 2012 is approximately N123, 283.52 though in the month of April, 2012 I was paid N103, 718.34K less my monthly salary because I went on annual leave in that month.”

He continued his submission by adding that the Claimant was how much his salary was that was why he used the word “approximately”, leaving the Court to speculate on what the actual salary could have been. It is accordingly not the law for the Court to embark on a voyage of speculation as it has no place in our law. He cited OFFOBOCHE VS OGOJA L.G (2001) FWLR PT 68 PG 1051 @1072.

He further contended that the Claimant having failed to particularize his claim for special damages and lead evidence in support, it is bound to fail as the Court cannot use his own conceived parameter in place of evidence. He cited the case of GANIYU BADMUS & ANOR VS A.O ABEGUNDE (1999) 71 L.R.C.N PG 2912 @ 2925 R.1

He submitted that the Claimant in his relief 4 claimed for accrued/arrears of salaries and allowances (emolument) at the rate of N125, 283.52.00 being his monthly salary from May 2012 till judgment is entered in the suit and also till judgment debt is fully paid. Counsel argued that the Claimant admitted he was issued with an indefinite suspension. The said suspension letter was admitted through the Claimant and marked Exhibit C2. The content of Exhibit C2 provides that the indefinite suspension issued the Claimant is without pay in line with the Defendant’s policy of no work, no pay. He submitted that the Defendant relies on her statement of defence on the condition of service for non-management staff and Guinness Nigeria Disciplinary Policy admitted in evidence and marked exhibit D4 and D5. He also referred to paragraph 3 of the Statement of Defence as well as paragraph 6 of DW1’s written statement on oath. He added that the Defendant in her statement of Defence also pleaded the fact that her policy is no work, no pay as provided for in Exhibit D4 and D5. He referred to paragraph 13, 14, and 15 of Defendant’s Statement of Defence as well as paragraphs 15, 16 and 17 of the written statement on oath of DW1.

He continued by adding that the Claimant admitted he did not work between the 9^th day of May, 2012 till the 31^st day of May 2018 when his employment was terminated. Counsel further submitted that Rules 39 and 49 of Exhibit D4 of the Defendant makes provision for no work, no pay policy and the Claimant is bound by the said policy of the Defendant.

He further argued that the Claimant, admitted that he did not work for the Defendant from the said 9^th day of May, 2012 to 31^st day of May, 2018 when his employment was terminated, therefore what is admitted need no further proof. He cited the case of SUNDAY OLOGUN VS JOHNSON FATAYO (2014) ALL FWLR PT 749 PG 1155, AROMOLARAN VS OLADELE (1990) 7NWLR PT 162 PG 262 @ 268 and Section 122(2) Evidence Act 2011 (as amended). Counsel finally urged this court to resolve issue two (2) in favour of the Defendant and dismiss the Claimant’s case with costs.

CLAIMANT’S FINAL ADDRESS AND SUBMISSIONS:

The Claimant’s counsel, in his written address formulated three issues for determination thus:

Whether the indefinite suspension and subsequent termination of appointment/ dismissal of Claimant was not wrongful/ unlawful.
Whether the Defendant’s acts of neglect by abandoning the Claimant who is her staff on the pretext of allegation of murder in the police custody is not in breach of duty of care which the Defendant owed the Claimant.
Whether the Claimant is entitled to his claims and any other order(s) of this court.

On issue one, the Claimant’s Counsel submitted that the indefinite suspension and the subsequent termination of appointment of the Claimant is wrongful, arbitrary and with disregard to the employment terms and conditions between the Claimant and the Defendant.

It was submitted on this that the following facts listed here under are not issue;

That the Claimant is a monthly salary/employee of the Defendant and was employed by the Defendant in October 2010. See paragraph 1 and 3 of the statement of fact and paragraphs 1 and 3 of the statement of defence.
That the Claimant was issued Exhibit C1 letter of employment embodying terms and conditions of service. See paragraphs 3 of the statement of facts, paragraphs 3 of the statement of defence and paragraph 3 of the reply to the statement of defence.
The Claimant until his suspension earned N123, 283. 52 as his monthly salary. See paragraph 4 of the statement of fact and paragraph 4 of the statement of defence.
The Claimant was accused of a murder which incident took place at the Defendant premises, the Claimant’s place of work — See paragraph 5 and 6 of the statement of facts, paragraphs 6 and 7 of the statement of defence and paragraphs 7, 8 and 9 of reply to statement of defence.
The Claimant was suspended indefinitely via Exhibit C2 barely 7 days after his said criminal allegation and on the strength of the said allegation pending when the Claimant resolved the case. Consequently the Defendant stopped paying the Claimant his salary. See paragraph 9 and 10 of the statement of fact and paragraph 11 and 14 of statement of defence.
The Claimant wrote the Defendant to discharge the suspension which he was subjected to without fair hearing having been exonerated by the Court of competent jurisdiction via Exhibit C3 after 7 years of his prosecution and accordingly discharged and acquitted. See paragraph 14 of the statement of fact and paragraph 20 and 24 of the statement of Defence.
The Claimant wrote the Defendant to discharge the suspension which he was subjected to without fair hearing having been exonerated by the Court of competent jurisdiction via Exhibit C4 and the Defendant replied that she will look into the matter via Exhibit C5 — See paragraphs 15 and 16 of the statement of fact and paragraph 21 of the statement of defence.
The Defendant invited the Claimant for discussion which ended in a deadlock. Subsequently, the Defendant posted a termination letter through mail to the Claimant which mail only came to the knowledge of the Claimant during the pendency of this suit — See paragraphs 24 of the statement of defence, paragraphs 2 of the reply to the statement of defence.
There was no disciplinary committee that tried the Claimant either prior or after his suspension and subsequent termination of the appointment — See paragraph 21 of the statement of facts and paragraphs 30 and 31 of the statement of defence.

Counsel continued his submission by adding that facts admitted need no further prove. He cited BANKOLE VS. ADEYEYE (2014) ALL FWLR (PT 721) 1570 C.A And SECTION 75 of the Evidence Act.

He cited the case of FMC, IDO EKITI VS. KOLAWOLE (2012) ALL FWLR PT (653) P.1999 @ 2011 paras. D-E identified three categories of employment viz

Pure master- servant relationship under the common law.
Employment where the office is held at the pleasure of the Employer and
Employment protected by statute.

Counsel added that, it is generally agreed that where an employment does not enjoy statutory flavor (Employment/Contract under statute) and not held at the pleasure of the employer, it is a master servant relationship. He cited the case of Iderima v. R.S.C.S.C (2005) 7SC (pt 111) 135. He added that a master servant relationship is mainly governed by agreement of parties that is; contract of employment which can be express or implied, written or oral — See Section 91 Labour Act.

He thus submitted that having regarded to the employment of the Claimant herein, it is one of master/servant relationship, as such, what are the terms of the said employment with regard to suspension and termination of appointment? The terms of the employment of Claimant, accordingly, is primarily contained in Exhibit C1. See paragraph 3 of the amended statement of facts, paragraph 4 of the reply to Statement of Defence and paragraph 4 of the CW1 further statement on oath. All the above stated paragraphs show clearly that the Claimant pleaded, relied and gave evidence on his Letter of Employment and terms of the Employment contrary to the assertion of the Defendant in paragraph 4.06 of her Final Written Address.

It was argued by Counsel that the Defendant introduced Exhibits D4 and D5 arguing that they formed part of the terms of the contract. It now becomes imperative to consider the said documents alongside Exhibit C1 in deciding whether or not the indefinite suspension and subsequent termination of the Claimant’s appointment is justifiable under the Claimant’s terms of employment and the general law governing contract of employment.

In supporting his argument therefore, Counsel added that to better understand the nature of Exhibit C1, the provisions of Section 7 of the Labour Act is important because it provides as follows:

Not later than three months after the beginning of a workers period of

Employment with an employer, the employer shall give to the worker a written statement specifying:

a)The name of the employer or group of employers, and where appropriate of the undertaking by which the worker is employed?
b)The name and address of the worker and the place and date of his engagement;
c)The nature of the employment;
d)The contract is for a fixed term, the date when the contract expires;
e)The appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to Section 11 of this Act;
f)The rate of wages and method of calculation thereof and the manner and periodicity of payment of wages.
g)Any terms and conditions relating to-
Hours of work, or
Holidays and holiday pay, or

iii. Incapacity for work due to sickness or injury including any provisions for sick pay; and

Any special conditions of the conditions of the contract.

Counsel submitted that a community reading of the above reproduced provision of the Labour Act when juxtaposed with the contents of Exhibit C1 will leave no one in doubt that Exhibit C1 contains terms and conditions of the Claimant’s employment. He urged this court to so hold.

Counsel added that however, while Exhibit C1 Is silent on whether the Defendant can suspend her employee, it made elaborate provision on how either party may determine the contract. Exhibit C1 provided in clause 12 (at the last page) of the employment letter/terms of employment as follows;

The company (defendant) or you (Claimant) may terminate your

Service by giving one month’s notice in writing or payment of one

Month’s basic salary in lieu of notice.

Claimant’s Counsel continued his submission by adding that the Defendant has extraneously argued that it paid the Claimant his one month’s basic salary in lieu of notice. See paragraph 4.15-4.8 of the Defendant’s final written address. Suffice it to say, therefore, that the contention of the Defendant in this regard is misconceived and goes to no issue, said Claimant’s Counsel. This is apparent on the face of Exhibit D3 which is the original cheque leaf purportedly issued to the Claimant. Exhibit D1, the purported termination letter, and Exhibit D3 (alleged final account statement) which all came from the Defendant’s custody. There is no way the Defendant will pay the Claimant one month’s salary in lieu of notice yet retain the cheque covering the sum. Also, all the documents allegedly served on the Claimant came from the Defendant’s custody during hearing. Could it be that the Defendant retrieved those documents from the Claimant before tendering same? The answer is No. the Defendant is in actual possession of those documents. This clearly shows that the Claimant is not in receipt of those documents which are still in custody of the Defendant and he urged this court to so hold. Equally laughable is the contention of the Defendant that it sent a cheque leaf through Electronic Mail to the Claimant.

He added that from paragraph 4 of the Statement of fact, and corresponding paragraph 4 of the Statement of Defence, it was clear that the Defendant does not pay the Claimant his salary through cheque. It therefore means that Cheque is not one of the agreed methods of payment of salary/wages between the Claimant and the Defendant. Also, throughout Exhibits C1, D4 and D5, there was no provision that the Defendant pays her employees through cheque.

Counsel quoted Section 1 (i) (a) of the Labour Act which provides

Subject to this section:

The wages of a worker shall in all contracts be made payable in legal

Tender and not otherwise.

Also subsection (3) provides:

Except where otherwise expressly permitted by this Act, Wages

Payable in money shall be paid only in legal tender or, with the

Consent in writing of the worker concerned, by cheque or postal

Order and payment or purported payment in any other form shall

Be illegal, null and void.

He further submitted that it is clear from the party’s pleadings that the Claimant never consented for any payment by cheque or postal order. There is nothing like payment through Electronic mail or “e-mail” and urged this Court to so hold. He urged this Court to also hold that the purported cheque allegedly sent to the Claimant’s Email is equally unlawful, null and void. Also, that any termination letter/notice issued without conforming to the agreed terms and conditions is ultra vires the contract and urges the Court to equally so hold.

Counsel contended further that by Exhibit D3, the amount contained therein was far short of the agreed basic monthly salary of the Claimant as contained in Exhibit C1. He urged the court to find and declare the said termination of employment of the Claimant wrongful/Unlawful.

Counsel stated that on the face of Exhibit C1 particularly paragraph one titled “Offer of Appointment”, it is clearly stated thus:

We are pleased to offer you appointment in Guinness Nigeria

As technical operator on Grade L7 (G5) on a basic salary of N325,

.00 in our packaging Department, Aba Brewery.

The Claimant in paragraph 3 of his statement of fact pleaded thus:

The plaintiff was employed by the Defendant in October, 2010 on

a monthly salary staff by the Defendant and was paid his salary/

allowances last in April 2012.

Counsel further submitted that the Defendant admitted this fact in paragraph 3 of her Statement of Defence. It therefore means that the Claimant’s monthly basic Salary as agreed by the parties is N325, 036.00 only as contained in the letter of Employment Exhibit C1.

Counsel further argued that by virtue of paragraph 54 of Exhibit D4 (Working in Guinness (2010) Edition), the terms contained therein are accordingly subject to the terms contained in Exhibit C1. The said paragraph 54 of Working in Guinness (2010) Edition) provide as follows:

….. Also, where the General terms of the handbook differ from the

Terms of individual’s contract offer of employment at the time of

joining, the terms in individual offer are superior and will apply.

The above clause clearly renders any provision in the handbook of the Defendant inapplicable with regards to the termination of appointment of the Claimant. He urged this court to so find.

He adumbrated that the indefinite suspension of the Claimant without giving him fair hearing was unwarranted, wrongful, and a breach of the Claimant’s fundamental right to fair hearing. On this suspension again, Counsel further argued that the Defendant’s power to suspend the Claimant and conditions that may arise for the just exercise of such power, was never expressly stated or contemplated in Exhibit C1. However, the allegation of a criminal nature requires that before an employee can be punished he must be accorded fair hearing. Thus, he cited the case of Igwilo vs. central bank of Nigeria (2002) FWLR (pt. 18) p. 265 @ 303, para. F. He also cited the case of GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT.18) 220 to buttress his point.

Counsel appeals that sadly in the instant case, the Claimant despite the allegation of committing a heinous crime of murder, was summarily suspended by the Defendant without any representation from the Claimant. The letter of indefinite suspension issued to the Claimant reads;

This is to inform you that you have been suspended indefinitely from

Payroll and all other employee benefits with immediate effect pending

When you resolve the case you have with the Nigerian police Authority

and the courts. Finally there should be no further contact with members

Of the organization except your HRBP or the legal adviser during the

Suspension period.

The said letter of indefinite suspension is Exhibit C2. Accordingly, despite the fact that the said letter prejudged the Claimant as though he committed the offence without hearing him, the Claimant after he was exonerated by the Court, made himself available and visited the Defendant’s depot at Osisioma, Aba to have the suspension discharged but was referred to the Head Office of the Defendant at Ikeja, Lagos yet the Defendant refused to lift the suspension but rather purportedly terminated the Claimant’s appointment on the strength of the suspension letter.

He submitted that the said letter of indefinite suspension having been issued to the Claimant without following the due process is invalid and he urged this court to so hold. He cited the cases of Legal Practitioners Disciplinary Tribunal V. Fawehinmi ( 1985) 2NWLR (PT 7) 300, of Baba V. Nigerian Civil Aviation Training Center, Zaria Kano ( 1991) 5NWLR (PT. 192) 388 and Igwilo V. Central Bank OF Nigeria (supra) at pg 299, paras E-H observed inter alia:

An employee on probation may be terminated without recourse to

Procedure once the employer or principal is satisfied that there is good

Cause for termination. But in the termination of a confirmed staff, the

Procedure laid for such termination must be adhered to, otherwise the

Termination is invalid. If the complaint against the employee is that he was

Guilty of misconduct or of breach of a regulation, then he must be heard

Before deciding he is guilty. In such a case, an administrative body acting

Judicially must be involved to hear the case and in strict observance of the

Rules of natural justice, though the manner of hearing depend on the

Particular circumstance of the case.

He further submitted that the Claimant was never subjected to any disciplinary procedure prior to his suspension and the subsequent termination of his appointment. This is without prejudice to the judgment of the High Court of Abia State exonerating the Claimant of the alleged crime. The Defence witness, DW1 during his cross- examination purportedly answered as follows:

Counsel: Since you suspended the Claimant, he has not been subjected to any disciplinary action or appeared before any disciplinary panel?

DW2: No, he has not.

Counsel: The Claimant was not subjected to any Disciplinary panel before his suspension?

DW2: Yes, he was not.

Counsel therefore submitted that this clearly showed that the said suspension and subsequent termination of the Claimant’s appointment on the ground of commission of offence did not follow due process.

He further submitted that paragraph 10 of the Working in Guinness 2010 Edition provided three main situations where the Defendant may terminate the employees’ service thus:

Without assigning any reason by giving the non-management employee one months’ notice in writing or without previous notice by paying one month salary in lieu of notice.
At any time and without previous notice, if the non-management employee is found wanting through either any act of omission or commission inconsistent with the due performance of the employee’s obligation under the contract of employment rule or for failure to carry out legitimate orders or any other breach of the employment contract of employment.
For summary dismissal, no notice be given and employees right to any benefit under the grateful scheme will be forfeited in such instance.

He reasoned that the above conditions are the only ground upon which the Defendant may terminate employees’ employment under the said working in Guinness 2010 Edition. Therefore, it was apparent from the letter of suspension issued to the Claimant, on the face of the letter that the Claimant was dismissed. See Exhibits C2, C6 and D1 respectively. The Defendant did not prove to this court that the Claimant actually committed the offence which he is accused of, not even in the light of Exhibit C3 (Court judgment). There was equally no disciplinary panel that tried and convicted the Claimant he cited Osisanya V. Afribank NIG. PLC (SUPRA)

He submitted that a cursory look at Exhibit D1 will show that it is bereaved of any cogent ground to warrant termination of the Claimant’s employment and urged this court to so hold.

He continued his submission that working in Guinness 2010 Edition relied upon by the Defendant can terminate the service of an employee where he is found wanting or without any reason by giving the employee one month notice or payment of one month basic salary in lieu of notice.

Counsel further argued that the Defendant failed to establish that the Claimant was found wanting of any misconduct or criminal act as portrayed in its letter of suspension and termination. The Defendant equally failed to establish that it paid the Claimant one month salary in lieu of notice as required by the terms of employment of the Claimant.

He further submitted that the Disciplinary procedure policy on the other hand provided for a disciplinary procedure before the Defendant can suspend her employee or it can suspend an employee “on full pay” whilst investigations are carried out, if there are reasonable ground to believe that:

Witness(es) and/or evidence may be interfered with if the employees in question remains at work and /or
There are good reasons to believe that the employee has committed acts of serious misconduct which if established, would justify dismissal.

Counsel referred to pages 3-5 paras. C-E of the Disciplinary Procedure Policy (Exhibit D5).

On his issue two, learned Counsel submitted that the Defendant’s neglect to care and provide support to the Claimant while in Police custody and throughout his criminal trial was wrongful and in breach of the duty of care which the Defendant owed the Claimant. By virtue of the Defendant’s relationship with the Claimant, it is not in doubt that there exists a fiduciary relationship which attracts corresponding duty of care. It is an implied condition in the master/servant relationship that there is a duty of the master to care for the servant under common law. The principle of duty of care as recently developed by English common law as part of Tort of Negligence in the English case of Donoghue vs. Stephenson (1932) AC 562 is an aspect of Tort of negligence. The basis is breach of duty of care based on foreseeability and neighbour test.

He again cited the case of Agbonmagbe Bank Ltd V. C.F.A.O (1966) 1ALL NLR 140.

He further submitted that from the abundance of evidence before the Court, it is clearly shown that the Defendant owes the Claimant duty of care. Thus, the Defendant as an employer of the Claimant owes him a duty to protect him during the cause of the Claimant’s duty and if anything happens to the Claimant in the course of his duty, the Defendant owes him a duty to report/communicate same to the appropriate authority or the Claimant’s family. See Section 5 of the Employee’s Compensation Act, 2010.

Counsel further added that the Claimant pleaded and gave evidence in paragraph 11, 12 and 13 of statement of fact and paragraph 11, 12, and 13 of the statement on oath of the CW1 how the Defendant neglected and abandoned him in the police custody without informing any one on his where about including his family. Though the Defendant denies the averments but contended that it contacted the Claimant’s next of kin. However, the Claimant’s next of kin, the CW2 in his evidence debunked the said assertion. He was nonetheless never cross examined on the fact. It does not make the evidence acceptable and uncontroverted, leaving the court with no other option than to act on the said piece of evidence.

On issue number three, learned Counsel submitted that the Claimant is fully entitled to his Claims.

He further submitted that the divergence between the words “wrongful” and “Unlawful” as it relates to contract of employment is a mere semantics, as it both sometimes is used interchangeably. Though the distinction is appropriate to categorize the type of employment but cannot vitiate a claim simply because it was applied incorrectly. He cited the case of Osisanya V. Afribank Nig. Plc (2007) ALL FWLR (PT. 360) P.1480 @ 1492 Paras C-D, where the supreme court held per Oguntade JSC ;

In an ordinary relationship like this one and following the common

Law principle, a termination of a contract of service, even if unlawful

Brings to an end the relationship of master and servant.

He further submitted that in the above cited authority, the Plaintiff’s Claim before the High Court of, Ilorin, Kwara State, claimed against the Defendant inter alia for —

Declarations that his dismissal was unlawful, null and void, that it

Was still subsisting, an order reinstating him to the Defendant’s

Service and payment of all his salaries and benefits from the date

Of his suspension.

The Court found that the said employment was a master/servant relationship, but however granted the plaintiffs’ claims for unlawful dismissal and ordered that he be paid all his salaries during his suspension up to the time of his dismissal. He cited the case of Chukwumah V. Shell Petroleum (1993) 4 NWLR (pt. 289) 512.

He finally added that the court cannot grant that which is not claimed, however there are exceptions to the general rule, thus he cited the case of Global soap & Detergent Ind.Ltd. V. NAFDAC (2011) ALL FWLR (Pt. 599)P. 1025 @1049-1050, paras. H-E, the court held;

“On a court granting an order that was never solicited for a litigant

Before a court, it trite that a court is not a Father Christmas however,

a court though not a father Christmas, has the discretion to grant or

make orders that will justify the case before it. Gone are the days

when judges were Zombies. A judge can use his discretion for a good

cause;…”

See also Dinyadi V.INEC (2011) ALL FWLR (pt. 581) P. 1426 at 1456 paras. D-F.

Therefore, the use of “Unlawful” against “Wrongful” cannot vitiate the Claimant’s claim, stated Counsel. Accordingly, the litigant should not be visited with the Counsel’s mistake. He finally submitted that the Claimant has proved his entire claims and urged this Court to grant the reliefs sought in the interest of justice.

COURT’S DECISION:

I have considered the Evidence adduced including the Exhibits admitted and the arguments and submissions of the learned Counsel to the parties. The lone issue to be considered in my view is whether the Claimant is entitled to the reliefs sought in this action?

This is a pretty straightforward matter and a lot of the legal jargons would have been spared if particularly, the Claimant’s Counsel had realized that in actions for termination of employment, all that the Claimant is required to do is to prove that his termination is either wrongful or unfair. This is particularly true for an employment between a master/servant as in this case. The minimal requirement is proof upon preponderance of facts and not beyond a shadow of doubt. Therefore, what is primarily required of this Claimant is to first identify the nature of his employment and then to elicit facts and evidence based on his claims sufficient enough to convince this Court that he is entitled to them.

Before considering the merit of the case, I find it needful to address first the reliefs 1, 3 (a), and 5 of the Claimant’s case. The said relief 1 accordingly seeks for a declaration that the indefinite suspension of the Defendant is “unlawful, unwarranted, arbitrary and accordingly null and void” Relief 3 (a) seeks to declare as illegal, null and void the purported termination letter sent to the Plaintiff’s email by the Defendant during the pendency of this suit on the supposition that the said termination letter was purposely made to further victimize, harass and oppress this Claimant without any justifiable reason and relief 5 seeks for an order directing the Defendant to immediately re-instate the Claimant and place/promote him to the appropriate position he would have been as though he was not suspended and pay him the salary differential or; to pay the Claimant a commensurate discharge sum according to the terms of his employment or the law which ever applies.

The question to be asked here is this can a dismissal be both wrongful and null and void?

The Supreme Court distinguished between a wrongful dismissal and one that is invalid or null and void. Where the finding of the Court is wrongful dismissal, a payment in lieu of notice will apply but where the finding of the Court is that the termination or dismissal was null and void, then there is no termination or dismissal as what the employer did was a nullity before the law. See BCC PLC V. Ager (2010) 9 NWLR (pt. 1199) 292. It just has to be noted also that only a dismissal from an employment with statutory flavor can be declared null and void. A dismissal or termination under a master/servant relationship can only be declared wrongful or unfair. Flowing from the above therefore, it is erroneous to assume that a dismissal can both be declared wrongful and null and void. — Osisanya v. Afribank Nig. Plc (2007) 6 NWLR (pt. 1031) 565 where it was held by per OGBUAGU J.S.C (Pp. 25-26, paras. G-B). “it need be stressed and this has long been settled, that in a master and servant relationship, a dismissal of an employee by the employer, cannot be declared null and void and of no effect whatsoever. The remedy as is also settled is an award of damages, where the termination or dismissal, is held to be wrongful”.

In view of the above, relief 1 cannot be granted as a whole. Reliefs 3 (a) and 5, I am afraid, equally suffer the same fate for the above reasons given. Relief number 5 in particular which is for an order of reinstatement and to place/promote him to the appropriate position he would have been as though he was not suspended and to pay him the differential salary or to pay him a commensurate discharge sum according to the terms of his employment or the law which ever applies, may only succeed partially to the extent of paying him any commensurate discharge sum according to any terms of his employment or the law whichever applies in the event his action succeeds — See the judgment of this Court in Bucky Ufuoma Agarry v. Lonestar Drilling Nigeria Limited and anor (2018) NICN see also Arinze v. first bank (Nig) Ltd (2000) 1 NWLR (pt.639) 78 @ 102.

I believe there are certain facts which are not in contention in this action whatsoever. They are:

The Claimant was employed by the Dedendant Company by letter dated 20/9/2010.
He was arrested by some of the staff of the Defendant and taken to the Police on suspicion of murder of one Obasi Udochukwu from his duty post at Osisoma Depot in April, 2012.
Having been placed under detention by the Police, the Defendant went ahead to suspend his employment by letter of indefinite suspension dated 16^th May, 2012.
Upon being discharged and acquitted of the murder by the High Court of Abia State on the 25^th of January, 2018, the Claimant went back to the Defendant company for the purpose of seeking an exoneration from the suspension and possibly reinstatement.
By letter dated the 31^st of May, 2018 however, the Defendant wrote a letter of termination of the Claimant’s appointment consequent upon which this Claimant approached this Court allegedly for justice.

The above timeline narrows the issues and questions which this Court necessarily needs to answer in order to arrive at a just decision in this suit. Despite the above non contentious facts, the Claimant still has to discharge the minimal burden placed on him in this suit. This is because in contracts of employment or service generally, where an employee alleges wrongful termination of the employment by the employer, the onus lies on him, in law to prove that the termination of his appointment was wrongful or unlawful (if it is a statutorily flavored employment) in order to succeed in the claims he makes against the employer. To discharge the burden, he must prove that:- a) He is an employee of the employer b) Place before the court the facts by way of pleadings, the terms and conditions of the employment, c) Who can appoint and who can terminate the appointment, d) In what situations or circumstances the appointment can properly be determined. See WAEC V. IKANG (2011) LPELR-5098(CA).

It is trite law, and just as the Defendant’s Counsel stated, that in common law employment relationships, a master can terminate the services of his servant for any reason or for no reason whatsoever. Where such happens just as it is in this case, the question of determining whether or not such termination is justified or not shall become the only issue the Court shall concern itself with. The fact of the matter is, each case has its own unique circumstances and so all the judicial authorities cited by either Counsel were decided based on those circumstances the Court found while determining them.

From the available admitted facts and evidence before this Court therefore, the termination of the Claimant’s employment was with effect from the 31/5/2018. The Defendant unquestionably, had such right to terminate or sever the hitherto extant contract of employment with this Claimant based on the terms and conditions contained in the letter of employment and the handbook known as “WORKING IN GUINNESS (2010) edition — Exhibits C1 and D4. On page 10 of Exhibit D 4, the Company may terminate the employment of a non – management employee a) without assigning any reason by giving the non management employee one month’s notice in writing or without previous notice by paying one month’s salary in lieu of notice.

However, this Court cannot completely ignore the fact that had the Claimant not been detained for over 7 years for a crime he was eventually acquitted of, he probably would have continued to work gainfully perhaps, under the employment of the Defendant to date. This is the crux which this Court must resolve.

Before then, it is important to determine the legality of the indefinite suspension given to the Claimant on 16/5/2012. The word ‘suspension’ means a temporary privation or deprivation, cassation 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 — LONGE V. FBN (2006) 3 NWLR (Pt.967) Pg.228.

According to the Claimant, the fact that he was detained by the Police and prosecuted for the offense he purportedly did not commit, was never factored by the Dedendant before he was indefinitely suspended. He claims that the Defendant owed a duty of care by ensuring that his interest was protected in the very least, when he was unlawfully detained. Against this, the Dedendant argued that based on their policy of no work, no pay, the Claimant not being at his duty post, could not have been paid any salaries and as such, the Defendant company had the right to suspend him pending the outcome of the investigation into his culpability of the charged offense. The Defendant in support of this claim, tendered Exhibit D 5 which is a document known as the Disciplinary Procedure Policy of the Defendant company.

On page 4 of Exhibit D 5 under the provision for suspension during investigation, it reads:

“An employee may be suspended from duty (on full pay), whilst investigations are carried out, if there are reasonable grounds to believe that:

….

…would justify dismissal.

Provided (underlining mine) such a suspension does not constitute disciplinary action. The period of suspension should not normally exceed 5 working days — if it needs to be longer, the employee concerned must be informed of the new date that his/her suspension will end. The employee should also be told that he/she is still employed by the Company and therefore must not work for any other party during the period of suspension.”

Now, for suspension as a sanction, Exhibit D 5 still clearly states as follows:

“In certain cases, a disciplinary committee may decide to impose a period of unpaid suspension by way of disciplinary action following a hearing. Such suspension should be as brief as possible bearing in mind that the relevant employee is still employed by the Company and must not therefore work for any other party during the period of suspension. An employee should be notified of a suspension in writing and a copy of the written notice must be kept in the employee’s file for a period not exceeding 12 months. After this time, the notice should be disregarded for disciplinary purposes.”

If giving its strict and literal interpretation, the Defendant’s Disciplinary Procedure Policy on suspension of its employees whether during an investigation or as a sanction, does not contrarily, stipulate that such suspension shall be indefinite. In fact, it clearly provides that during the suspension, the employee shall still be regarded as still employed in order to prevent him from working elsewhere. Interestingly, Exhibit D4 which is the Working in Guinness handbook refers to the said Exhibit D 5 for further details on the issue of suspension of an employee.

Going therefore by that policy, it is thus obvious that the indefinite suspension given to the Claimant on the 16/5/2012, was in deed, against the provisions of the disciplinary policy of the Defendant and same must accordingly be declared as unfair and wrongful. It is arguable to say that that policy never envisioned a situation where an employee such as the one at hand, faces criminal litigation and for how long he shall be placed on suspension. Of course, that question is not this Court’s kettle of fish since the Defendant expressly informed the Court that they had followed the Company’s policy strictly when they placed this Claimant on indefinite suspension.

Having thus found the indefinite suspension of 16/5/2012 to be unfair and wrongful, it follows suit that I find the subsequent termination of this Claimant’s employment on the 31/5/2018 equally unfair and unlawful and I so declare.

Flowing from the above declarations, it follows that the Claimant is legally entitled to the salaries he would have earned from the time it was withheld, till the date of the termination of his employment, which in this case, shall be the time of pronouncement of this judgment. This has legal backing from plethora of judicial authorities including CHUKWUKA V. SHELL PETROLEUM (Supra) rightly cited by the Defendant’s Counsel. In Longe v. F.B.N. Plc. (Supra), the Court held that the Claimant was entitled to his salaries from the date of his suspension till the date judgment was pronounced as though he was never suspended by the Respondent bank.

Therefore, based on the available facts and evidence before this Court, I believe the Claimant established that his last received salary in April 2012 is the sum of N123,283.52. This Court now orders the payment of the Claimant’s salaries from May 1^st 2012 to 31^st December, 2019 at his last known paid salary which is N123,283.52, totaling N11,218,800.32, be paid to him within 30 days of this judgment which shall in default, attract an interest of 10% per annum until it is fully and finally liquidated.

As for the damages sought by the Claimant in the sum of N10,000,000 in his relief number 6 of his amended processes, I find that in order to succeed in this claim, the Claimant is required to provide sufficient evidence convincing enough to establish that he actually suffered any damages resulting from the act or inaction of the Defendant. This is because this falls in the realm of special damages requiring proof of. Therefore, the relief number 6 is hereby refused as sought, and

Ultimately and for the avoidance of any doubts whatsoever, the Claimant’s claims succeed in part only to the extent of the declarations that his indefinite suspension and eventual termination were unfair and wrongful and the consequential award of salaries from 1^st May, 2012 to 31^st December, 2019 as expressly made in the foregone findings above.

Delivered in a Owerri this 21^st day of January, 2020.

Hon. Justice ibrahim Suleiman Galadima,

Judge, NICN Owerri.