EKOM E. GAMBO -VS- ABUJA ELECTRICITY DISTRIBUTION

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

DATED 20TH MAY 2019

SUIT NO: NICN/ABJ/198/2015

BETWEEN

EKOM E. GAMBO CLAIMANT

AND

⦁ ABUJA ELECTRICITY DISTRIBUTION COMPANY DEFENDANTS

⦁ FRANCIS FAKOYEJO

(Trading Under the Name and Style of Fay Francis & Co.)

REPRESENTATION

MATT BURKA for the Claimant with Dr. C. G. Barnabas, A. E KAINE and A. AHMED

E. U. OGAR for the 1st Defendant

AKOR DANIELS for the 2nd Defendant

JUDGEMENT

⦁ This Judgement ought to have been delivered before today but due to the indisposition of this judge and her incidental medical confinement it it being delivered today. Counsel have all indicated that they are still willing to receive this judgment today.

⦁ The Claimant, by a General Form of Complaint filed on 23rd June, 2015 accompanied by the Statement of Facts, Witness Statement on Oath, List of Documents, approached the Court for the following reliefs:

⦁ A DECLARATION that the 2nd defendant’s report indicting the Claimant is ultra vires the powers of the 2nd defendant and void in that the report was a product of an exercise done in breach of the principles of natural justice and in total violation of the 1st defendant‘s staff manual.

⦁ A DECLARATION that the 2nd defendant acted in bad faith against the Claimant when it indicted him in its report despite the dearth or total lack of evidence against the Claimant.

⦁ A DECLARATION that the 1st defendant cannot rely on the report of the 2nd defendant or otherwise take any action against the Claimant in reliance on the said report which is speculative, spurious and lacking in merit.

⦁ AN ORDER of this Court setting aside the report of the 2nd defendant as it relates to the Claimant, for being speculative, unfounded and unmeritorious.

⦁ AN ORDER setting aside the indefinite suspension of the Claimant from the employment of the 1st defendant based on the report of the 2nd defendant.

⦁ AN INJUNCTION restraining the 1st defendant from relying on the said report for any purpose whatsoever whether in exercise of any criminal complaint or maintenance of any criminal or civil suit against the Claimant.

⦁ AN ORDER that the 2nd defendant pay to the Claimant the sum of #50 Million (Fifty Million Naira) only being damages for unlawful interference with the contract of employment between the Claimant and the 1st defendant.

⦁ AN ORDER that the 2nd defendant pay to the Claimant the sum of #10 Million only for psychological pains, trauma and injuries suffered as a result of the negative recommendations and statements made of the Claimant by the 2nd defendant in its report to the 1st defendant.

⦁ AN ORDER that the 1st defendant pay to the Claimant the sum of #10 Million (Ten Million Naira) only for unlawfully placing the Claimant on indefinite suspension before investigation.

⦁ AN ORDER that the 1st and 2nd defendants pay jointly and severally the sum of #6,000,600.00 (Six Million, Six Hundred Thousand Naira) being the legal cost of prosecuting this suit and attending investigation sessions at the EFCC.

⦁ AN ORDER that the 1st defendant pay the sum of #15 Million (Fifteen Million Naira) to the Claimant as damages for writing a petition to the EFCC against the Claimant on an alleged IOU which is civil in nature.

⦁ AN ORDER that the 1st and 2nd defendants pay jointly and severally the sum of #4,467,904.40 (Four Million, Four Hundred and Sixty Seven Thousand, Nine Hundred and Four Naira, Forty Kobo) being financial losses incurred by the Claimant as a result of the conduct of the 1st and 2nd defendants.

Claimant’s Case

⦁ The Claimant averred that he was employed by the defunct National Electric Power Authority (NEPA) and later to its successor Power Holding Company of Nigeria up to Abuja Electricity Distribution Company (NEPA). And that during his progression in service with National Electric Power Authority and Power Holding Company of Nigeria, he was without blemish until his time of service with the 1st defendant who disengaged him upon take over, and immediately re-engaged him on a contract for six months commencing from 1st November 2013.

⦁ Claimant averred that sometime in March 2014 the Claimant was suspended and was thereafter served with a memo; noting that a memo or query was not issued to the Claimant before the suspension, which is contrary to the provisions of the Staff Manual which clearly stated how to discipline an employee of the 1st Defendant (AEDC).

⦁ A letter dated 13th March 2014 demanding for explanation on certain irregularities concerning the missing funds by the Claimant’s subordinates, which according to the 1st Defendants, led to the company losing a cumulative sum of N10, 114, 090.00 (Ten Million, One Hundred and Fourteen Thousand and Ninety Naira) was served on the Claimant. The Claimant responded to the memo, on the 17th of March, explaining his understanding of the whole transaction and stating in clear terms, that the entire transaction had nothing to do with his office and he knew nothing about the issues raised in the memo. On or about the 19th of March, 2014, the 1st Defendant forwarded another memo titled “Demand for explanation” concerning the Claimant collecting an IOU from the 1st Defendant’s cash office at various dates, the Claimant again responded to same and exonerated himself from any complicity.

⦁ The Claimant continued that the 2nd Defendant thereafter invited the Claimant to appear before him as A WITNESS to testify as to what he knew about the fraud perpetrated by his subordinates. And that this whole turbulence resulted in the Claimant suffering sundry loses; losing his job, peace of mind, interrogations by the EFCC that cost him inappropriate and unbudgeted spending of monies. Claimant stated that he was also robbed off his properties by armed robbers on one of the times he was coming back from EFCC’s office.

⦁ The 2nd defined filed their ‘STATEMENT OF DEFENCE OF THE 2ND DEFENDANT’ on 12th October, 2015 and dated 7th October, 2015.

⦁ The 2nd Defendant stated that the Claimant was invited to offer some explanations with respect to transactions in the Claimant’s office and under his supervision; that the 2nd Defendant was not in any way furious with the Claimant and did not insist that the Claimant must take responsibility. But that the comprehensive FORENSIC AUDIT REPORTS clearly shows that the Claimant colluded with the cashiers under his supervision, instructions and control to defraud the 1st Defendant over a period of time. The 2nd defendant averred that the Claimant’s right to fair hearing was not breached as the 2nd Defendant duly invited the Claimant in the course of the forensic audit to explain and clarify certain issues concerning the discharge of his duties which includes his supervisory role over the subordinate staff under his authority as the head of Finance and Accounts at the Gwagwalada Business Unit of the 1st Defendant.

⦁ The 2nd Defendant also stated that their recommendations were based on findings and documentary facts scooped from the accounts section of the 1st Defendant’s Gwagwalada Business Unit which the Claimant headed as Senior Manager (Finance & Accounts). The 2nd Defendant as well denied liability in terms of paragraph 41 of the Claimant’s Statement of Facts and shall at the trial of this matter urge the Honourable Court to dismiss the Claimant’s claims against him with substantial costs.

⦁ The 1st defendant filed their ‘1ST DEFENDANT’S STATEMENT OF DEFENCE/COUNTER-CLAIM’ on 20th November, 2015.

⦁ The 1st Defendant stated it does not know the Claimant’s records when he served under NEPA and PHCN but is aware of an ongoing investigation of financial improprieties against the Claimant and some other persons, suspected to have taken place while the Claimant was in the employ of the 1st Defendant at its Gwagwalada Business Unit, by the Economic and Financial Crimes Commission. The 1st Defendant admits that upon his disengagement, the Claimant was fully paid his terminal benefits and severance entitlements by the PHCN, thus effectively bringing his engagement with PHCN to a conclusive and permanent end, in line with the extant laws, regulations and policies on reforms in the power sector. And that the 1st Defendant was actually offered the Claimant a Six-month Contract of Employment, the terms and conditions of which are embodied in the 1st Defendant’s letter dated 22 October, 2014 to the Claimant which he duly accepted, and the contract was agreed upon to run between 1st November, 2013 and 30” April, 2014.

⦁ 1st Defendant contended that the Claimant was suspended to pave way for unhindered investigations into some financial improprieties discovered in the financial records of the Gwagwalada Business Unit where the Claimant was a Senior Manager/Accountant and when the 1st Defendant’s preliminary investigation showed that the Claimant had some questions to answer as regards his involvement, he was issued with the Memos dated 13th and 19th March, 2014.

⦁ To the 1st Defendant, they acted within their rights and in line with global best practice when it suspended the Claimant to pave way for thorough investigations into financial improprieties which were uncovered at the Gwagwalada Business Unit of the 1st Defendant where the Claimant was a Senior Manager and Accountant, to determine his level of involvement and to ensure that he did not use his influence to distort the course of internal investigations ordered by the management of the 1st Defendant; And that the 1st Defendant actually set up an internal committee to investigate the financial improprieties at Gwagwalada Business Unit of the 1st Defendant and it was then that two memos of 17th and 19th March, 2015 were issued to the Claimant for him to explain all he knew about the financial improprieties going on under his nose. The Claimant responded to the Memo of 13th on the 17th March, 2014 and the Memo of 19th March, 2014 on the 26th March, 2014 wherein he admitted that he had knowledge of some financial improprieties that had been going at the Gwagwalada Business Unit which he never as a Senior Manager reported to the 1st Defendant until it discovered same by itself.

⦁ The 2nd defendant continued that prompted by the need to have an independent expert to conduct a professional forensic audit on its financial affairs after the internal committee concluded its investigations, the 1st Defendant engaged the services of the 2nd Defendant who trades and practices under the name and style of FAY FRANCIS & GO, as it is entitled in law to so do.

⦁ The 2nd defendant maintained that the Claimant was over five months into his six month contract of employment with the 1st Defendant when he was sent on suspension, he was paid all his full salaries and entitlements under the contract which lasted from 1st Novemebr,2013 to 1st April,2014 and was not denied anything he was entitled to while the contract lasted; and that the contract of employment of the Claimant with the 1st Defendant ended by effluxion of time and it was the sole and exclusive prerogative of the 1st Defendant to renew or refuse to renew if it so desired and the right to exercise any of such choices is not in any manner connected to the 1st Defendant’s right to mandate the 2nd Defendant to conduct a forensic audit into the financial records of the 1st Defendant.

⦁ To the 2nd Defendant, the 1st Defendant only exercised its right not to renew the contract of employment and that had nothing to do with the on-going investigations by the Economic and Financial Crimes Commission into his involvement in the financial improprieties bordering on criminal infractions while his employment with the 1st Defendant lasted.

⦁ WHEREFORE the 1st Defendant urged the Honourable Court to dismiss all the reliefs and claims contained in Paragraph 40 and 41 of the Statement of Facts as same are diversionary, speculative, premature,, vexatious, gold-digging, fictitious and constitute gross abuse of the process of this Honourable Court.

Particulars of negligence and connivance:

⦁ WHEREFORE the 1st Defendant/Counter-Claimant counter-claims from the Claimant the sum of NI 8, 000,000 (Eighteen Million Naira) being the total sum unaccounted for by the Claimant owing to his dereliction of duty and negligence.

⦁ The 1st Defendant/Counter-Claimant pleads and shall rely on all relevant documents referred to in the Statement of Facts and Statement of Defence/Counter-Claim including but not limited to the Claimant’s written responses to the memos written to him in respect of the investigations carried out by the 1st Defendant/Counter-Claimant, the letter of disengagement form Power Holding Company of Nigeria and the letter of contract of employment between the parties herein for their full effect and value.

⦁ The Claimant filed his ‘CLAIMANT’S REPLY TO 2ND DEFENDANT’S STATEMENT OF DEFENCE’ on 2nd December, 2015.

⦁ In Reply to the 2nd Defendant’s Statement of Defence, the Claimant stated that the 2nd Defendant did not in any way follow best auditing standard and best practices as claimed but was on a mission to witch-hunt and indict the Claimant at all cost despite the dearth of evidence against the Claimant. The Claimant averred that Mr. Joseph Ngbo did not at anytime allege any fraud against the Claimant. That the only allegation the Claimant was confronted with, which the Claimant denied, was the allegation that he collected an IOU from the said Mr. Joseph Ngbo. The Claimant maintained that his right to fair hearing was indeed breached because, when he appeared before the 2nd Defendant, he was not confronted with any allegation of fraud or wrong doing, he was only asked to give explanations to the allegation of Mr. Joseph Ngbo as to whether or not he collected any IOU.

⦁ Contending; -i. It is the direct responsibility of the Manager Revenue as the holder of Remittance Book 6A (Summary of daily Collection and Banking) to ensure banking, so if money are not banked it is for the Manager Revenue by capturing of transactions in his book 6A and tracing such lodgments to the bank to discover’ such irregularities, if any

ii. No function(s) was manipulated in any Way by the Claimant because every staff had duties assigned to him in the department and the line of reporting specifically spelt out in the Manuals and is expected to diligently discharge same

iii It is normal and the responsibility of one who clears monies to also deposit same in the bank Because, the figures are known to him first hand and so he ought to immediately relay the figures so cleared to the headquarters All officers in the department had responsibilities assigned to them by the Manual. More so, with the appointment of a Manager Revenue directly from the Headquarters of the 1st Defendant in accordance with the Accounting manual, all funds cleared should be known and communicated to him daily.

iv. The Claimant avers that he does not operate or clear any cash receipt register machine and could not have compromised any. The record keeping procedure of the 1st Defendant was perfect to the extent that no issue was raised by any supervisors in the Headquarters. All records were kept in accordance with the regulation

v. It was not the responsibility of the Claimant to programme the cash receipting machine for the purpose of assigning passwords to cashiers but that of the vendor who supplied them.

vi. This is another duty of the Manager Revenue and not the Accountant since he controls directly all cashiers.

vii. The cashiers were to hand in all bank tellers to the Manager Revenue for capturing in the book 6A. There was no report before the Claimant indicating otherwise from the Supervisor.

viii. The Claimant avers that he could not have colluded with any staff let alone the clearing cashiers.

ix. The Claimant avers further that in the course of his duty, he had cause to do impromptu/cash count which is expected of his office and he never discovered any amount missing.

x. The Claimant avers that, Bank reconciliation is the direct duty of the Manager Revenue who is the holder of book 6A who audits daily transaction using bank tellers and traces same to the Bank on a daily or weekly basis. Besides, the entries in the bank reconciliation column do not have an entry from diverted funds but this could be discovered by daily capturing of bank tellers and tracing same to the bank statement by the Manager Revenue.

xi. IOU is not allowed under the rules of the 1st Defendant which is well known to Mr. Joseph Ngbo. In the unlikely event of any,’ he would have been given a note to that effect. It is not feasible to advance money to the Claimant even when he was away for weekends with his family. So the wild allegation that IOU was given to the Claimant remains a mere assertion without proof.

⦁ WHEREOF the Claimant prays this Honourable Court to discountenance the 2nd Defendant’s Statement of Defence for being unmeritorious.

⦁ The Claimant filed his ‘REPLY TO THE 1ST DEFENDANT’S STATEMENT OF DEFENCE AND COUNTER CLAIM’ on 27th January, 2017.

⦁ The Claimant denied that upon the sale of PHCN and the acquisition of same by the 1st Defendant, the Claimant was disengaged and later re-engaged by the 1st Defendant. And averred rather that the Claimant was, placed on a 6 month probation running from 1st November, 2013 till April, 2014. And that Paragraph 10 of the 1st Defendant’s statement of defence is misleading as the Claimant’s replies to the Memos of 13th & 19th March, 2014 were clear, concise and unambiguous as per the ‘Claimant’s level of involvement’ on the alleged financial Improprieties which were never directed to the Claimant. That in the said replies, the Claimant made it abundantly clear that he knew nothing about the alleged financial improprieties.

⦁ The Claimant maintained that instead of being served with a letter officially terminating the contract or allowing the contract to run its full course, the 1st Defendant placed the Claimant on an endless suspension (a suspension which ought not to have exceeded Fourteen (14) days and caused untold hardship to the Claimant as he kept waiting to be recalled especially after the interview to re-engage him was conducted and in view of the fact that he had nothing to do with the alleged “financial impropriety” and also for the fact that the Claimant was never queried. The Claimant also replied that the 2nd Defendant, is not a registered company and having No Qualification or license to act as an Audit firm is in contravention of the law.

⦁ Arguing :

⦁ That the Claimant is entitled to a copy of the findings of the 2nd Defendant and that the Claimant ought to be given an opportunity to defend himself against such weighty allegations and reply to the said allegations.

⦁ That it is wrong for the 2nd Defendant to have interfered with the contract of employment between the Claimant and the 1st defendant and also denied an opportunity of re-engagement merely on suspicion of the 1st Defendant.

⦁ That the 1st Defendant had continually made himself a party to the EFCC’s investigation, as the 1st Defendant routinely sends its representative to the office of the EFCC to monitor proceedings with the aim of influencing the investigation of the Commission. The 1st Defendant till date had not obliged a copy of its petition to the EFCC against the Claimant to the Claimant.

⦁ The 2nd Defendant’s findings and conclusions where at most speculative based on conjectures, and suspicions.

⦁ WHEREFORE the Claimants prays the Honourable Court to dismiss the Statement of Defence of the 1st Defendant and dismiss same with cost.

DEFENCE COUNTER- CLAIM

⦁ To the Claimant, the 1st defendant’s counter claim is brought in bad faith and highly speculative as same is not borne by the facts of this case neither supported by any shred of evidence. The Claimant averred that the Counter Claim contradicts in its entirety the 1st Defendant’s/Counter-Claimant’s case before this court.

⦁ At the trial, the Claimant testified on his own behalf as CW1, adopted his three witness statements on oath of 23rd June 2015, 2nd December 2015 and 27th January 2017 which were marked in sequence as C1. C2. and C3 accordingly. And proceeded to tender 9 other exhibits which were marked C4-C16. Exhibit C16 was admitted under protest. CW1 was cross examined by the 1st defendants Counsel as the 2nd defendants Counsel declined to cross examine CW and announced in open court that they would be relying and adopting the 1st defendants cross examination.. The Claimants 2nd witness CW2 under subpoena tendered exhibits C17-C22. And this closed the Claimant’s case. The 1st defendant called Ibuku Franca Olusegun the Regional Human Resource Manager of the 1st defendants Nasawara office, who adopted her written statement on oath of 20th November 2015 tendered the 2nd Defendant’s forensic report which was marked Exhibit D2; and was duly cross examined by Counsel to the Claimant. The 2nd defendant appeared in person adopted his written statement on oath of 12th October 2015 which was marked D3 and also tendered 6 other documents that were marked D4- Exhibit D9. DW2 was duly cross examined by the Claimant’s counsel. Thereafter parties were asked to file and serve their respective written addresses starting with the defendants as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007; and the matter was adjourned for adoption of written addresses. The 1st defendant’s final written address is dated and filed on 8th June, 2018 and the 2nd defendant’s final written address is dated and filed on 26th June, 2018 While the Claimant’s is dated and filed on 13th July, 2018.. The 1st and 2nd defendant’s fled their replies on points of law on 19th July, 2018 25th October, 2018 respectively.

The 1ST DEFENDANT’S FINAL WRITTEN ADDRESS filed on 8th June, 2018.

ISSUES

⦁ Whether from the state of evidence before this Court, it was wrongful for the 1st Defendant to exercise its right not to renew its contract of employment with the Claimant.

⦁ Whether the 1st Defendant was wrong in causing an investigation and forensic audit of financial improprieties at its office at Gwagwalada, Abuja.

⦁ Whether the 1st Defendant is entitled to its counter-claim against the Claimant in the light of the facts and circumstances of this case.

⦁ ARGUMENT IN SUPPORT OF THE OBJECTION TO THE ADMISSIBLITY OF EXHIBITS C16 AND D2

⦁ Counsel submitted that Exhibit C16 is a document that was applicable to the relationship between Power Holding Company of Nigeria Plc. (PHCN) and its erstwhile employees. That the Claimant is a former employee of PHCN as Exhibit C14 brought to a permanent end the employer-employee relationship between it and the Claimant. OKOJI V NJOKANNA (1999) 14 NWLR(PT.638)250@266D-E, per Achiike, JSC

ON ISSUE 1

Whether from the state of evidence before this Court, it was wrongful for the 1st Defendant to exercise its right not to renew its contract of employment with the Claimant.

⦁ Learned Counsel submitted that Section 91 of the Labour Act defines a contract of employment as any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker: SHENA SECURITY CO. LTD V AFROPAK (NIG) LTD & ANOR (2008)16 NWLR (PT 1118)77@94 Paragraph B-C.

⦁ He posited that the applicable contract of employment between the Claimant and the 1st Defendant is Exhibit C15 which is a contract appointment which had a lifespan of six months from 1 November, 2013 to 30t1 April, 2014 following which he may be “eligible for full time employment, subject to satisfactory performance, appraisals and availability of suitable positions”. That the law is settled that oral evidence cannot be used to contradict the content of a document except where fraud is alleged on the content of the document. EGHAREVBA V OSAGIE (2010) All FWLR (PT 513)1255 SC.

⦁ Counsel contended that Exhibit C14 formally brought the employment of the Claimant with PHCN to the end in view of the reforms in the power industry under the Electric Power Sector Reforms Act 2005, and that under cross-examination, the Claimant himself admitted being familiar with the reforms under the Electric Power Sector Reforms Act 2005. That even if the foregoing facts were not admitted under cross-examination by the Claimant, they are matters which this Honourable Court is entitled to take judicial notice of under Section 122 (2) of the Evidence Act 2011; GUINESS (NIG) LTD V AGOMA(1992)7 NWLR (PT 256)728@742-742, per Ejiwunmi, J.C.A (as he then was).

⦁ It is counsel’s contention that having collected his severance benefits as the clear wordings of Exhibit C14 show, the Claimant does not fall within the purview of those employees of defunct PHCN to whom Section 21 of the Electric Power Sector Reforms Act 2005 applies. AFRICAN PETROLEUM PLC V.MR. FRANCI FOLA AKINNAWO (2011) NLLR (PART 98)@26, paras. B-C.

⦁ Furthermore, that the Claimant enjoyed the benefits afforded by the contract of employment which Exhibit C15 symbolizes after he had collected his severance entitlements and he must be deemed to have waived his right as an employee who is entitled to the benefits of the provisions of Section 21 of the Electric Power Sector Reforms Act 2005. ARIORI V ELEMO (1983)1 SCNLR 1; ONIA V ONYIAI-I (1989) 1 NWLR (Pt. 99) 514 at page 534, per Kabiri Whyte, JSC.

⦁ Counsel argued that the suspension of the Claimant while investigation was on going did not in any way violate his right. SHELL PETROLEUM DEVELOPMENT CO Y LAWSON-JACK (1998) 4 NWLR (PT.545)249@270, per Uwaifo J.C.A (as he then was); UDEMAH V. NIGERIA COAL CORPORATION (1991) 3 NWLR (PT 180)477@486, per Uwaifo JCA (as he then was).

⦁ Learned Counsel submitted that it is the trite principle of labour law that an employer can terminate the appointment of the employee with or without reason provided the employer complies with the terms and condition of the contract of employment that was entered between the parties. JOHN HOLT VENTURE LTD V OPUTA (1996)9 N.W.L.R (PT 470)101 @117-118, per Orah, J.C.A.

ISSUE 2

Whether the 1st Defendant was wrong in causing an investigation and forensic audit of financial improprieties at its office at Gwagwalada, Abuja.

⦁ Counsel submitted that the 1st Defendant has a duty under the law to report allegations of crimes to agencies of government saddled with the statutory responsibility of investigating such crimes and he does thereby incur any liability. Thus, that the 1st Defendant did no wrong by reporting the Claimant to EFCC. AFRIBANK (NIG) PLC v. ONYIMA (2004) 2 NWLR (Pt. 858) page 654; FAJEMIROKUN v. CBN LTD (2009) 21 WRN 1 @ 10; P.G.S.S Macchi v. Igbudu (2005) 12 NWLR (Part 940) 543 at 574.

⦁ Learned Counsel posited that in the evaluation of evidence before them, trial courts are guided by the following principles as laid down by the Supreme Court:

⦁ Whether the evidence is admissible;

⦁ Whether the evidence is relevant;

⦁ Whether the evidence is credible;

⦁ Whether the evidence is conclusive;

⦁ Whether the evidence is more probable than that given by the other party:

ODOFIN V MOGAJI (1978)11 NSCC 257; KOLO V LAWAN (2011) All FWLR (Part 597)725; AGBI V OGBEH (2006) All FWLR (Pt.329)941.

2ND DEFENDANT’S FINAL ADDRESS filed on 26th June, 2018.

ISSUES

⦁ Whether the 2nd defendant is a proper party as a Defendant before the Honourable Court.

⦁ Whether the Claimant has proved his case and should be granted the reliefs being sought in in this suit

ON ISSUE 1

Whether the 2nd defendant is a proper party as a Defendant before the Honourable Court.

⦁ It is counsel’s submission that the courts have held that the proper party to sue and be sued when an agent is acting within the scope of his authority for a disclosed principal is the principal and not the agent. Carlen Nigeria Limited V University of Jos (1994) 1 NWLR (Pt. 323)631 (P. 282 Para. A).

⦁ Furthermore, that the act of an agent made within the scope of his authority for a disclosed principal is in law the act of the principal, and the person to be sued. Uba Plc v Ogundokun, (2009) NWLR (Pt. 1138) 450 at 483 — 484.

ON ISSUE 2

Whether the Claimant has proved his case and should be granted the reliefs being sought in in this suit

⦁ Learned Counsel submitted that the declaratory reliefs sought by the Claimant are hinged on the premise that the 2nd Defendant’s report is ultra vires the powers of the 2nd Defendant and void in that the report was a product of an exercise done in breach of the principles of natural justice and total violation of the 1st defendant’s staff manual. DUMEX NIG. LTD V NWAKHOBA (2008) 18 NWLR (PT. 1119) 361 at 374, per Mohammed J. S. C.

⦁ He posited that for the Claimant to be entitled to the declaratory reliefs sought, he must adduce convincing, positive, affirmative and unequivocal evidence in support of his case. Adekoye J.S.C in Arowolo V Olowookire (2011) 18 NWLR (Pt 12780) 280 at 304.

⦁ Furthermore, that the Claimant having failed to tender the AEDC staff manual is deemed to have abandoned any submissions on the purported violation of the 1st defendant staff manual, which does not yet exist. Amaizu J. C. A in B.O.N Ltd V Babatunde (2002) 7 NWLR (Pt 766) 389 at 409 – 410.

⦁ Counsel contended that the Claimant is not entitled to any of the declaratory reliefs sought in this suit as he failed to discharge the onus on him to adduce cogent, credible and convincing evidence to substantiate the averments in the statement of facts as he has not proved that the 2 defendant is responsible for the non renewal of his contract which has elapsed due to effluxion of time. Dumex Nig. Ltd V Neakhoba (Supra) at 301, per Chukwu – Eneh J. S. C.

CLAIMANT’S WRITTEN FINAL ADDRESS filed on 13th July, 2018.

ISSUES

⦁ Whether the 2nd Defendant’s Report (Exhibit D2) which indicted the Claimant is not liable to be set-aside by this court for being unreliable, speculative and ultra-vires the powers of the 2nd Defendant.

⦁ Whether the indefinite suspension of the Claimant by the Defendant is not a violation of the Staff Manual of the 1st Defendant and therefore liable to be set- aside.

⦁ Whether the Defendant is not to pay damages to the Claimant for unlawful interference with the Claimant’s contract of employment with the lst Defendant which was adversely affected and foreclosed by the 2nd Defendant’s negative findings and recommendations against the Claimant in Exhibit D2.

⦁ Whether the Claimant is not entitled to damages against the 1st Defendant for unlawfully placing him on indefinite suspension before investigation.

ON ISSUE 1

Whether the 2nd Defendant’s Report (Exhibit D2) which indicted the Claimant is not liable to be set-aside by this court for being unreliable, speculative and ultra-vires the powers of the 2nd Defendant.

⦁ Counsel submitted that the Claimant’s major complaint before this court which led to the institution of this suit is predicated on the vexed Report of the 2nd Defendant which was adopted by the Court in the cause of proceedings and marked Exhibit D2.

LEGAL REASONS WHY THE COURT OUGHT TO SET-ASIDE EXHIBIT D2

⦁ Counsel posited that there are three (3) fundamental reasons why Your Lordship will be respectfully urged based on the facts and evidence led in this matter to set-aside Exhibit D2 and clear the Claimant’s good name and reputation. The reasons are:

⦁ THE REPORT IN EXHIBIT D2 IS ULTRA-VIRES THE POWERS OF THE 2ND DEFENDANT AND IS A PRODUCT OF A WRONGLY CONSTITUTED BODY

⦁ CLAIMANT’S RIGHT TO FAIR HEARING WAS BREACHED

⦁ SPECULATION AND UNRELIABILITY OF EXHIBIT D2

THE REPORT IN EXHIBIT D2 IS ULTRA-VIRES THE POWERS OF THE 2ND DEFENDANT AND IS A PRODUCT OF A WRONGLY CONSTITUTED BODY

⦁ Counsel argued that the Claimant led evidence to show that as a Senior Staff of the 1st Defendant, any Disciplinary Committee set up by the 1st Defendant must be made up of the following:

⦁ A Chairman, who must be at least two grade levels above the affected Staff.

⦁ Two members, who must be at least one grade level above the affected employee

⦁ A Human Resource Officer above the affected employee (as Secretary of the Committee.)

⦁ That this is clearly admission against interest which this court must apply against the 1st Defendant. KAMALU V. UMUNNA (1997) 5NWLR (Pt. 505), Per BELGORE, JSC; JINADU & ORS .V. ESUROMBI-ARO & ANOR (2009) LPELR-1614 (SC), Per OGUNTADE, JSC, at pp.41-42, paras. FB.

⦁ Counsel submitted that where a particular mode of doing a thing is provided by law, only that mode and no other can be adopted by a party as the adoption of any other mode is a nullity. M.A.P.P .V. INEC & ORS (2015) LPELR — 25706 (SC), per Muhammed JSC at p.29, paras. B.

⦁ And that based on the above uncontroverted evidence led, the Court is urged to find and hold that Exhibit D2 having been a product of a Committee that violates the Staff Manual of the 1st Defendant cannot stand for being a nullity. STATE .V.OLATUNJI (2003) LPELR — 3227 (SC), Per KALGO at page 18 paras. A-C.

CLAIMANT’S RIGHT TO FAIR HEARING WAS BREACHED

⦁ Learned Counsel submitted that where a person indicted by a Report was only invited as a witness and not as a person against whom allegation is made, a finding by that Committee indicting him of Wrong doing which in this case is criminal in nature will be set- aside for breach for being a nullity. NJC .v. SENLONG (2010) LPELR — 4582 (CA), Per PETER-ODILI, JCA (as he then was) at page 35 to 37 paras E-A.

⦁ In urging the Court to to set-aside Exhibit D2 for the reasons demonstrated herein especially as the findings of misappropriation contained therein against the Claimant are criminal in nature, counsel referred the Court to the case of YUSUF .V. FRN (2016) LPELR — 41811 (CA), Per OHO, JCA, at pages 25-26 para. E.

⦁ Counsel argued that based on the foregoing, the Court is urged to set-aside Exhibit D2especially as DW2 who is the maker pronounced same unreliable in open court. That Evidence elicited under cross-examination from the DW1 and DW2 in this case indeed supports the Claimant’s case and is enough to determine this case against the Defendant and justify the setting aside of the Report of the 2nd Defendant. FAWEHINMI & ANOR. VS.AKINLAJA & ORS. (2010) LPELR-8963(CA), Per NWOSU IHEME, JCA at page 15-16 paras. E-A

ISSUES 2 AND 4

Whether the indefinite suspension of the Claimant by the Defendant is not a violation of the Staff Manual of the 1st Defendant and therefore liable to be set- aside.

Whether the Claimant is not entitled to damages against the 1st Defendant for unlawfully placing him on indefinite suspension before investigation.

⦁ Counsel contended that evidence led shows that the 1st Defendant in flagrant breach of the above principle, actually suspended the Claimant before without even issuing a query at all or carrying out an investigation and to make matters worse, the Claimant still remains suspended till date. Therefore, that the Court is urged to correct this grave injustice and set-aside the indefinite suspension which has been hanging over the Claimant since March, 2014 till date. In fact, that the Claimant was not served with any letter of suspension but was just left in “limbo’ even the letter of suspension brought in by 1st Defendant lack credibility for being undated, signed “for” an officer and not served on the Claimant.

⦁ Thus, that the Claimant is entitled to damages against the 1st Defendant for this grave injustice and breach of the 1st Defendant’s own Rules of engagement.

ON ISSUE 3

Whether the Defendant is not to pay damages to the Claimant for unlawful interference with the Claimant’s contract of employment with the lst Defendant which was adversely affected and foreclosed by the 2nd Defendant’s negative findings and recommendations against the Claimant in Exhibit D2.

⦁ Counsel argued that it is the law that where a third party by his action, representation or inaction interferes with the contract between contracting parties, the defaulting third party will be liable to pay damages to any of the parties affected for unlawful interference with such contract.

⦁ That based on the foregoing argument, the Court is respectfully urged to award damages as sought by the Claimant against the 2nd Defendant for unlawfully interfering with the contract of employment between the Claimant and the 1St Defendant.

CLAIMANT’S RESPONSE TO 1ST AND 2ND DEENDANTS WRITTEN ADDRESS

FIRST DEFENDANT COUNTER-CLAIM OUGHT TO BE DISMISSED

⦁ Counsel submitted that the burden of prove as to whether or not the 1st Defendant is entitled to the sum of N18 Million as claimed rest on the 1st Defendant and in this case it has failed woefully to prove same. He urged the Court to discountenance the Applicant’s submission in paragraph 5.28 of its Written Address wherein Counsel to the 1st Defendant urged the court to grant the said Counter-Claim. This is because the 1st Defendant has failed to lead evidence and prove same. OLASEINDE & ORS .V. THE FEDERAL HOUSING AUTHORITY & ORS (2015) LPELR — 24532 (CA); OGBOJA .V. ACCESS BANK PLC (2015) LPELR — 24821 (CA).

DEFENDANTS DID N0T ADDRESS ISSUE OF SETTING ASIDE REPORT (Exhibit D2)

⦁ Counsel argued that it is imperative to draw the Court’s attention to the fact that the 1st and 2nd Defendants in their written address failed to address the question as to whether or not the investigation report of the 2nd Defendant, which is one of the core complaints of the Claimant before this court, should be set-aside; as the Claimant has indeed in reliefs 1, 2, 3, 4, 5, 6,7 and 8 sought for the setting aside of that report. That the legal consequence of the failure of the 1st and 2nd Defendants’ Counsel to address this point is a concession of the point. In other words, that the 1st and 2nd Defendants have shown from their written address that the court ought to grant those reliefs having conceded to same. where the Supreme Court OGBOJA .V. AKINTOYE SOWEMIMO & ORS (2008) LPELR — 3315 (SC), PER ONNOGHEN, JSC (as he then was) at page 15 paras. B-C.

DEFENDANT SET UP A SEPARATE CASE FOR CLAIMANT

⦁ Counsel urged to discountenance in its entirety the submissions of the and 2nd Defendants as what they seek to do is to lure the court into making a case for the Plaintiff different from what was presented before the court by the Claimant and thereafter complain that the court erred in its judgement. OBIMIAMI BRICK & STONE (NIG.) LIMITED .V. AFRICAN CONTINENTAL BANK LIMITED (1992) LPELR — 2177 (SC), Per OMO, JSC (P. 71, para. E).

2ND DEFENDANT CANNOT ESCAPE LIABILITY BY PLEADING AGENCY AS CLAIMANT HAS SOUGHT RELIEFS AGINST HIM FOR HIS ACT.

⦁ Assuming, (without conceding) that the 2nd Defendant is an agent of the 1st Defendant, its recommendation in its report to the 1st Defendant which led to the report made against the Claimant to the EFCC brings him within the purview of such “agent” that can be held liable for their wrongful act. In COTECNA INTERNATIONAL LIMITED .V. CHURCHGATE NIGERIA LIMITED & ANOR (2010) LPELR — 897 (SC) where the Supreme Court held, Per GALADIMA, JSC (Pp. 18-19, para. B)

⦁ Counsel assuming, without conceding that the 2nd Defendant is an agent of the 1st Defendant, its recommendation in its report to the 1st Defendant which led to the report made against the Claimant to the EFCC brings him within the purview of such “agent” that can be held liable for their wrongful act. COTECNA INTERNATIONAL LIMITED .V. CHURCHGATE NIGERIA LIMITED & ANOR (2010) LPELR — 897 (SC), Per GALADIMA, JSC (Pp. 18-19, para. B).

⦁ ADMISSIBIBILITY OF EXHIBIT C16 AND D2

⦁ Counsel contended that what determines whether or not a document can be admissible is relevancy. TAMKEYAR v. BUSSA & ORS(2017) LPELR42987(CA), Per OMOLEYE, J.C.A. (Pp. 13-14, Paras. E-F); OKONJI V NJOKANMA (1999) 14 NWLR (PT. 638) 250 AT 267; MUSA ABUBAKAR VS E.I. CHUKS, S.C. 184/2003.

⦁ He maintained that the 1st Defendant is clearly blowing hot and cold at the same time and the law does not allow this, that he cannot be probating and reprobating. ADENIJI V. ADENIJI (1972) ALL NLR (PT. 1) 297; ASSURANCE LTD .V. S.G.B.N. Ltd. (1992) 2 NWLR (Pt. 224) 495 at 503 paragraph B; AREGBESOLA .V. OWOLADE (2015) LPELR — 24 293 (CA), per DANJUMA, JCA; NEPA Vs URUAKPA (2010)12 NWLR (pt. 1208) 298.

1ST DEFENDANT’S REPLY TO THE CLAIMANT’S FINAL WRITTEN ADDRESS filed on 19th July, 2018.

⦁ Counsel contended that the case of NJC V SENLONG (2010) LPELR -4582 which the Claimant’s counsel quoted copiously does not apply to the case at hand. That there is nothing from the state of evidence led by the Claimant which established that the investigation or the Report of same caused the “termination” of the Claimant’s employment which had elapsed by effluxion of time.

⦁ Furthermore, that whatever lapses that were noticed did not deprive the 1st Defendant of accepting the Report which was the outcome of the assignment it commissioned the 2nd Defendant to carry out and did not deprive the 1st Defendant from writing the EFCC to investigate all matters relating to the infractions that took place under the nose of the Claimant.

⦁ With respect to arguments on issues 2 and 4 formulated by the Claimant, counsel responded that “suspension or indefinite suspension”, either before or after issuance of query on the Claimant cannot by the sheer advocacy of the Claimant’s counsel take away the fact that it is Exhibit C15 that governed the relationship between him and the 1st Defendant while it lasted. That the Claimant more so was not deprived of any of his entitlements.

⦁ With respect to issue 3, counsel adopted their submission in the 1st Defendant’s Final Written Address in urging the Court to hold that the Defendants have done nothing wrong in law against the Claimant capable of attracting any legal remedy in the form of the gold-digging sum claimed by the Claimant or any amount.

⦁ He urged the Honourable Court to dismiss the Claimant’s claim in its entirety.

2ND DEFENDANT’S REPLY ON POINT OF LAW filed on 25th October, 2018.

⦁ Counsel noted that the actual task of the 2’ Defendant was to ascertain the financial status of the 1st Claimant in the unit headed by the Claimant and that it was established and conceded by the Claimant at paragraph 3 of its statement of fact that the 2nd Defendant was engaged by 1st Defendant as an agent to carry out an audit. That this position is also canvassed in 2nd Defendant’s written address that 2nd Defendant is an agent of a disclosed principal with the 1st Defendant being the disclosed principal. This being so, the 2nd Defendant has further contended that he is not a proper party to this suit. That the Supreme Court has firmly established that a Defendant acting on behalf of a known and disclosed principal, incurs no liability even where the disclosed principal, is a foreigner. SAMUEL OSIGWE V. PSPLS MANAGEMENT CONSORTIUM LTD & ORS. (2009) 3 NWLR (Pt. 1128) 378 SC, Per Ogbuagu, J.S.C. (Pp. 31-32, paras. F-B).

ON WHOM DOES THE BURDEN OF PROOF LIE

⦁ Learned Counsel submitted that the law is that the burden of proof lies on the party who will fail if no evidence at all were given on either side. Section 132 Evidence Act 2011; IRONBAR V. C.R.B.R.D.(2004) 2NWLR (PT.857) P 411 at 417, Per Dennis O. Edozie J.C.A.; Agboola vs. U.B.A Plc. (2011) 11 NWLR (Part 1258) 375 at 385 para. 3, Per Mukhtar, JSC.

⦁ Counsel submitted that even where the agent is shown to have exceeded his authority, the onus or burden is on the Claimant to show that the exceeded authority was not rectified by the principal as such ratification would mean the 2nd defendant’s act has been validated with the disclosed principal taking liability of same. BOSA v. YAKASAI (2013) LPELR-22364(CA); AL-BISHAK v. NATIONAL PRODUCTIVITY CENTRE & ANOR (2015) LPELR-24659(CA).

⦁ He posited that even if this court is to set aside the indefinite suspension, the only entitlement of the Claimant is his salary in lieu of notice or his salary for the remaining one month and 2 weeks within which the contract ought have lapsed and such ought to be construed against his employers and not the 2nd Defendant. N.E.P.A. v. Adeyemi (2007) 3 NWLR (Pt. 1021) 315 at 336 – 337, Paras.G – C (CA).

⦁ Counsel noted that the Claimant contended in his issue 2 that the indefinite suspension slammed on him by the 1st Defendant is a violation of the staff manual of what regulates his employment, submitting that the staff which first and foremost relates to an employment having statutory flavor is not applicable in all fours with the Claimants status in its six months employment with the 1st defendant. That the only remedy available to the Claimant for the wrongful suspension being a claim for damages covering the six weeks period which the contract ought to have lasted if any. Afribank (Nig.) Plc v. Osisanya (2000) 1 NWLR (Pt.642), pg. 599, per Ajegbo, JSC at page 174.

⦁ On the 5th November 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

Court’s Decision

⦁ I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. I am inclined to adopt the issues for determination formulated by the Claimants. This way all the arears raised by the defendants shall be resolved in answer to all the issues raised in this compliant.

⦁ The following are the Claimants reliefs:

⦁ A DECLARATION that the 2nd defendant acted in bad faith against the Claimant when it indicted him in its report despite the dearth or total lack of evidence against the Claimant.

⦁ AN ORDER of this Court setting aside the report of the 2nd defendant as it relates to the Claimant, for being speculative, unfounded and unmeritorious.

⦁ AN ORDER setting aside the indefinite suspension of the Claimant from the employment of the 1st defendant based on the report of the 2nd defendant.

⦁ AN ORDER that the 1st defendant pay to the Claimant the sum of #10 Million (Ten Million Naira) only for unlawfully placing the Claimant on indefinite suspension before investigation.

⦁ To properly situate the Claimant’s case and evaluate his entitlement to these reliefs it is necessary to determine the type of employment relationship that existed between the Claimant and the first defendant. The law recognizes that there are three categories of employment

⦁ Purely Master and Servant relationship

⦁ Servants who hold their office at the pleasure of the employer

⦁ Employment with statutory flavour….”

⦁ And the determining factor of the type of employment is dependent on the wordings of the Letter of employment and the terms and conditions of the contract

⦁ In support of his case the Claimant tendered inter alia his contract of employment Exhibit C15 being his Letter of Offer of 6 month Contract together with the terms and conditions of his contract of service. Reproduced below

⦁ In law where the term of service is pre-determined at the commencement of the contract the contract is categorized as a fixed term contract. See SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS. (2008) LPELR-3052(SC). and

C15 clearly puts the Claimant under a fixed term employment of the master and servant category, I find and hold.

⦁ The Claimant in reliefs 1-3 is seeking a legal pronouncement on the propriety of Exhibit D2, with respect to the manner of its production (that it was made in breach of the principles of natural justice and in total violation of the 1st defendant‘s staff manual), its reliability ( having been made in bad faith without regard to the dearth or total lack of evidence in addition to being speculative, spurious and lacking in merit)and this exhibit against which the 2nd defendants had raised objections on the grounds of relevance. (I shall address this objection further along in this judgement)

⦁ The position of the law as regards declaratory order is as was stated in the case of S.P.D.C.N. LTD. v. AJUWA (2015) 14 NWLR (PT. 1480) C.A. 403 @ 431 Where it was held that “a party seeking a declaratory relief must place before the court credible and sufficient evidence to entitle him to the declaratory relief. A court cannot grant a declaratory relief without credible sufficient evidence. Such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same in the pleading, the relief being equitable in nature. KWAJAFFA v. B.O.N. LTD (2004) 13 NWLR (PT. 889) 146. Also in DAVID OGUNLADE Vs. EZIEKIEL ADELEYE (2006) LPELR-7722(CA) The court of Appeal held that the differences between declaratory and executory judgments; – Whilst the latter declare the respective rights of the parties and then proceed to order the defendant to act in a particular way, and is therefore immediately enforceable; the former merely proclaims or declares the existence of a legal relationship and do not contain any order which may be enforced against the defendant vide Okoya v. Santilli (1990) 2 NWR (Pt. 131) 172 and Government of Gongola State v. Tukur (1989) 4 NWLR (Pt.117) 592.

⦁ The 2nd defendant is asking the court to consider Exhibit C2 irrelevant. In the case of ILESANMI v. OGUNLEYE & ANOR (2016) LPELR-41348(CA) the Court of Appeal held that; – The law is that evidence that are relevant in the sense that they tend to prove or disprove a fact in issue or fact relevant to a fact in issue is relevant. Every relevant fact is admissible. See Sections 6, 8, 10 of the Evidence Act.” Per DANJUMA, J.C.A. (P. 14, Paras. C-D. with respect to the Claimant’s reliefs, Exhibit D2 is the basis of the Claimants action, and as such is not only relevant but integral to this case I so find and hold. And therefore the 2nd defendant is a proper party to this issue and this suit.

⦁ Now looking at the gamut of the Claimant evidence I find that the Claimant has not presented this court with any reliable evidence with which to countermand Exhibit D2,; particularly with regard to the subject matter of this suit.

⦁ It is pertinent to point out that although this case presents as one of wrongful termination it is indeed not so. The Claimant has maintained that the 2nd defendants report particularly the observations made with regards to the Claimant on pages 21 and 22 of D2 was the rationale behind the 1st defendants refusal to renew his contract, however I find that nowhere in Exhibit C2 had the defendant reserved the right to renew the Claimant’s contract, the only situation reserved was one for full employment subject to variants , yet there is nothing before the court to show that the defendant ever considered afotori offered the Claimant this or any other option is more to the point on, this I find puts paid to the issues and effect of Exhibit D2. This means that the Claimant has not show the court an entitlement to renewal of contract how much more the evidence that the 2nd defendants report truncated his contract renewal Relief 7 therefore fails.

⦁ The law is clear that the summation of the defendants case against the Claimant is to be considered within a master and servant relationship where misconduct is whatever the defendant deems it to be See ANAKSIM Vs U.B.A.1994 1 NWLR (Part322) at p.577 and the defendant is at liberty to hire or fire, as a general rule. See OSISANYA VS AFRIBANK NIG. PLC (2007)6 NWLR (PT. 1031) 1.

⦁ With regard t the propriety of the 2nd defendant to render Exhibit D2, the Claimant has not shown the court what the powers of the 2nd defendant were, so as to enable the court consider whether or not they were ultra vires the powers of the 2nd defendant and with respect to breach of the principles of natural justice; this court has held that in a situation where a Claimant seeks to raise a question of lack of fair hearing the Claimant is expected to raise it at the very first opportunity I,e, at the panel . see MRS. ABDULRAHAMAN YETUNDE MARIAM V. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD & ANOR [2013] 35 NLLR (PT. 103) 40 NIC. Furthermore contrary to paragraph 9 of the Claimants Statement of fact, there s nothing before the court to indicate that Exhibit C16 was indeed the 1st defendants manual or that the defendants had agreed to be bound by the said Exhibit C16 to enable their acts to be considered as being in total violation of the said staff manual. To the defendant Exhibit C16 is a document that was applicable to the Claimant’s erstwhile employers. In law parties are bound by their contract and in terms of employment relationship the importance and Bindingness of the terms of the contract of employment which is contract of service between the parties cannot be overemphasized. See ADEWEMIMO v. FINBANK SECURITIES AND ASSETS MANAGEMENT LIMITED (2015) 52 NLLR (PT. 173) 119 NIC @ 125. Where the contract of Employment has been reduced to writing, the court and the parties are bound by those terms. The court has no duty to look outside the terms stipulated and agreed therein by the parties to the contract in determining the respective rights and obligations of the parties arising from the contract. WESTERN DEV.CORP.Vs. ABIMBOLA [1966]4NNSCC 172. NWAUBANI Vs. GOLDERN GUINEA BREWRIES PLC. [1995]6NWLR Pt.400 Pg184, COLLEGE OF MEDICINE OF UNILAG Vs. ADEGBITE [1973]5SC149, INTERNATIONAL DRILING CO. Vs.AJILILA [1976]2SC115

⦁ From the above I find that the 1st defendants are not bound by Exhibit C16 and in that wise all references to the work history of the Claimant with NEPA and PHCN I hold to be immaterial and irrelevant t this case. All such documents and averment are hereby discountenanced.

⦁ Now, the 1st defendant raised the issue b Whether the 1st Defendant was wrong in causing an investigation and forensic audit of financial improprieties at its office at Gwagwalada, Abuja. The 1st defendant I find has a right to engage any person he deems fit to investigate his affair it does not lie with the Claimant an employee to question the propriety of the investigator or select an auditor for his employer. I find and so hold.

⦁ The Claimant as not established an entitlement to reliefs 1-3 and contrary to his submission the Claimant cannot rely on the defendant’s evidence or admissions to found these claims. Reliefs 1-3 fail. As does relief 4. In relief 4 and 6 the Claimant is asking the court to set aside Exhibit D2 for being speculative unfounded and unmeritorious and restrain the 1st defendant from relying on it in the maintenance of criminal or civil actions. The former I find the Claimant has not substantiated to the satisfaction of the court that Exhibit D2 was in fact unmerited, unfounded as stated above and the latter, the 1st defendant had argued that they have a duty under the law to report allegations of crimes to agencies of government saddled with the statutory responsibility of investigating such crimes and do not incur any liability by so doing. I find is actually outside of the competence of this Court to grant. This Court cannot by an injunction gag an employer from disciplining an employee where the need arises; and regarding the prayer restraining the 1st defendant from relying on the said report for any purpose whatsoever whether in exercise of any criminal complaint or maintenance of any criminal or civil suit against the Claimant without more, is outside of the jurisdiction of this Court. This Court cannot gag the process of the administration of justice or due process in the manner prayed for by the Claimant in relief 6. The law generally recognises the right of an employer to discipline any erring employee in the interest of the organization or institution, although it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. See NEPA V. OLAGUNJU [2005] 3 NWLR (PT. 913) 602. INDEED, AS HELD IN SHELL PET. DEV. CO. (NIG.) LTD V. OMU [1998] 9 NWLR (PT. 567) 672, it is a disruption of an ordinary employer’s business to fetter him with an injunction not to discipline his servant. For these reasons, I cannot grant reliefs 6 and by extension reliefs 10 and part of 11, as well as all claims made incidental to the Claimant sojourn in EFCC as prayed for by the Claimant cannot be granted and are accordingly dismissed. See SUIT NO. NIC/LA/117/2011 MR. BABATUNDE OGUNSOWO VS. DANA MOTORS LIMITED delivered on 10th July 2013.

⦁ In relief 5 the Claimant is asking for an order setting aside the indefinite suspension of the Claimant from the employment of the 1st defendant based on the report of the 2nd defendant. To the Claimant the 1st defendant’s action suspending him before and without even issuing a query or carrying out an investigation amounts to a grave injustice, the defendants contend that they acted within their rights as employers and suspended the Claimant in order to conduct a proper investigation. The position of the law is that an employer has an inalienable unfettered right to suspend a member of staff , but the scope of that right is contingent on the contract of service and/or conditions of service making the necessary provisions in that regard. The only constraint to this unfettered right is not to suspend without pay unless such a right is to suspend without pay unless same is reserved in the Conditions of service, (which is not the position in this case) and since the defendant did not make any express provision as to suspension without pay, while it can suspend the Claimant, it certainly cannot suspend him without pay. In U.B.A. PLC v. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 C.A. It was held that “it is against fair hearing and the rule of natural justice for an employee to be suspended on half salary when the employee has not been queried and accorded a fair hearing on the query. In the instant case, the 1st defendant maintain that they had paid the Claimant all his entitlement See Paragraph 10 of the 1st defendants statement of Defence, the Claimant has not presented any evidence that he owed his all or part of salary during the said suspension. With respect to the lack of notification or query prior to suspension, it is pertinent to point out that Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. Under the Common Law, a term entitling the employer to suspend the employment of an employee will not be implied into the contract of employment. An employee suspended with or without pay, and whether indefinitely or for a period of time, remains an employee in service during the suspension period until the contract of employment is determined by the employer or until a decision about such an employee is taken one way or the other. See ATOKI v. ECOBANK PLC (2014) 47 NLLR (PT. 151) 47. In the circumstances the Claimant being a fixed contract employee his contract was determined at the end of the contract term of six month. The legal consequence of suspension is determinable from the terms of employment in question. Therefore I find that Reliefs 5 and 9 have not been substantiated to this court and so cannot be granted.

⦁ In relief 8 the Claimant is seeking damages of sum of #10 Million only for psychological pains, trauma and injuries suffered as a result of the negative recommendations and statements made of the Claimant by the 2nd defendant in its report to the 1st defendant. The Claimant has not presented this court with any report from a psychiatric Hospital in respect of the said psychological pains, trauma and injuries suffered to enable the appropriateness of the Claimant claim to N10,000,000. I find that this head of claim has not be substantiated at all and as such cannot be granted.

⦁ The Claimant in relief 10 is asking for a refund of legal cost. The position of the law is as was stated in the case of GUINNESS (NIG.) PLC V. NWOKE [2000] 12 NWLR (PT. 689) 135 AT 150 “that it is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the opposing party”. I hold that the case of GUINNESS (NIG.) PLC V. NWOKE [Supra] was frowning on something like this. The Claimant had frontloaded /tendered a Fee note indicating that the Claimant was charged N6, 600, 000.00 by his Counsel as payment for his legal representation. Professional fees, like special damages, must be specifically pleaded, particularized and proved. See FORTUNE INTERNATIONAL BANK PLC & ORS V. CITY EXPRESS BANK LTD [2012] LPELR-7900(CA). Mere admission in pleadings is not enough. In SAVANNAH BANK OF NIGERIA PLC V. OLADIPO OPANUBI [2004] LPELR-3023(SC), His Lordship Uwaifo, JSC, on what a legal practitioner’s bill of charges should contain, held that a bill of charges should particularize the fees and charges “e.g. (a) perusing documents and giving professional advice; (b) conducting necessary (specified) inquiries; (c) drawing up the writ of summons and statement of claim; (d) number of appearances in court and the dates; (e) summarized statement of the work done in court, indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; (f) the standing of the counsel at the bar in terms of years of experience and/or the rank with which he invested in the profession. It is necessary to indicate amount of fees against each of these items (emphasis is this Court’s)”. The Fee Note tendered in this case does not contain the items enumerated by His Lordship Uwaifo, JSC. What all this adds up to is that the present claim for professional fees falls short of the legal requirement. For all these reasons, I am not satisfied with the proof of this claim and so cannot grant it. This part of Relief 10) accordingly fails and so is dismissed.

⦁ Relief 12 is for an order of court for the defendants to jointly and severally pay to the Claimant the sum of #4,467,904.40 (Four Million, Four Hundred and Sixty Seven Thousand, Nine Hundred and Four Naira, Forty Kobo) of financial losses. The Claimant in his pleading listed items lost and money expended by him following the defendants reports to the security agents. The Claimant did not provide this court with an police report of the item lost or receipts of purchase to back up the loss or any clear indication of the defendants roll in the loss. Having held that the court could not prevent the defendant from disciplining its employee and considering the position of the law that courts cannot interfere with the statutory roll of security agents, without more and barring a formal discharge of the Claimant I feel the claim for loss or incidentals is premature. This relief therefore fails.

⦁ I find that the Claimant case fails for lack of merit.

⦁ The defendants are counterclaiming from the Claimant the sum of NI 8, 000,000 (Eighteen Million Naira) being the total sum unaccounted for by the Claimant owing to his dereliction of duty and negligence. The Claimant contend that the Defendants presented no evidence in support of this counterclaim and urged the court to dismiss same. The position of the law is as follows. “It is trite law, that for all intents and purposes, a counter-claim is a separate, independent and distinct action and the counter-Claimant, like all other plaintiffs in an action, must prove his claim against the person counter-claimed against before obtaining judgment on the counter-claim. See JERIC (NIG.) LTD. V. U.B.N. PLC (2000) 15 NWLR (PT.691)447 per Kaldo J.S.C. (P. 25, Paras. C-E). I agree with the Claimant/Defendant to counter claim that the defendants have not presented any evidence in support of this counter claim. The Counter Claimant have not shown this court where under the contract they are entitled to recover loss from the Defendant to the counter claim for lack of supervision. This counterclaim I find is an after-thought and hereby fails and dismissed.

⦁ For avoidance of doubt the judgement of this court is that the Claim fails and the counter claim also fails.

⦁ This is the court’s judgement and it is hereby entered.

⦁ I make no order as to cost.

………………………………….

Hon. Justice E. N. Agbakoba

Presiding Judge.