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National Industrial Court

HALLMARK SECONDARY SCHOOL, ONDO LTD -VS- MRS. OLAJUMOKE

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

 

BEFORE HIS LORDSHIP HON. JUSTICE A. A.ADEWEMIMO

 

 

DATED: 16TH OCTOBER, 2018                            SUIT NO: NICN/AK/32/2017

 

BETWEEN

 

HALLMARK SECONDARY SCHOOL, ONDO LTD       CLAIMANT

 

AND

 

MRS. OLAJUMOKE MOMOH                                  DEFENDANT

 

REPRESENTATION:-

 

  1. O. AFOLAYAN FOR THE CLAIMANT.
  2. S. OLONIMOYO WITH TEMITOPE KEHINDE FOR THE DEFENDANT/ COUNTER-CLAIMANT.

 

JUDGMENT

 

The Claimant by a Complaint before this Court on the 14th November, 2017 claims against the Defendant as follows:

  1. A DECLARATION that the seizure/withholding by the Defendant of the Claimant’s Financial Management Database Password is unlawful, illegal and without any legal basis.

 

  1. AN ORDER of this Honourable Court mandating and compelling the Defendant to immediately release the Claimant’s Financial Management Database Password which was unlawfully seized/withheld by the Defendant to the Claimant.

 

 

  1. Two Million Naira general damages for the wrongful detention/withholding of the Claimant’s Financial Management Database Password despite repeated demands by the Claimant.

 

  1. Cost of this action.

The Claimant filed along with the Complaint all the accompanying processes, i.e. the statement of facts, deposition on oath of the claimant, list of witnesses and documents to be relied upon.

The Claimant’s case is that the Defendant was employed into St. Raphael’s Nursery and Primary School and was later appointed as the Accountant to the Claimant and served as the Head of Account Section. The Claimant averred that the Defendant was found to be negligent in the discharge of her duties as the accountant, was fond of abandoning her duty post without any reason or explanation whatsoever, and in addition, lacks the habit of documentation, which resulted in the loss or misplacement of vital documents belonging to the Claimant, this is aside the fact that the Claimant’s work was filled with a lot of grammatical inaccuracies, typographical errors, as well as inaccurate figures on the official records/document.

As a result of the above, the Claimant issued a warning letter dated 25th May, 2016 to her. The Defendant however remained unremorseful and unabated in her nonchalant attitude to duty which the school authority abhorred, and as a result of the Defendant’s refusal to turn a new leaf, despite all entreaties, the claimant was indefinitely suspended via a letter dated 26th August, 2016 Exhibit H2.  It is the Claimant’s case that the Defendant refused to hand-over the password to the Historical Database of the School after her suspension, this made it impossible for the Claimant to access her financial records, despite several demands. The defendant instead caused her solicitor to write a letter dated 1st June, 2017 marked Exhibit H3 wherein she accused the proprietress of the claimant of various wrongs, to which the claimant responded to in her reply dated 14th July, 2017 marked Exhibit H4  The Defendant further briefed another solicitor, to write another letter dated 8th August, 2017 marked Exhibit H5 and titled “Demand for sum of N1,040,000.00 (One million, forty thousand naira only) the immediate reinstatement of Mrs. Momoh Olajumoke to her duty post and notice to institute legal action against the institution at the Industrial Court” to which  the Claimant  further replied and requested for the password through her solicitor , the claimant asserted that up until the time of filing this suit, the Defendant has refused/neglected to release the said password,  the withholding of  which, has led to the denial of access to the Financial Management records(which consists of vital and sensitive information concerning the Claimant’s payroll, tax issues as well as all financial information of the Claimant) of the school, a situation which has caused the Claimant untold hardship and irreparable damage in her activities and services, in addition to payment of excessive tax to the Ondo State Government.

The Claimant also claims a sum of N1,000,000.00 (One million naira only) incurred for the prosecution of this suit, whereof the claims against the Defendant as stated above.

The Defendant/Counter Claimant on the other hand filed her Statement of Defence and counter claim on the 12th of December, 2017, wherein she denied every averment in the Claimant’s Statement of facts. It is the Defendant’s case that she is an employee of the Claimant and that she was employed on 1st February, 2013 by St. Raphael’s Kiddies School of No. 4, Brigadier Ademulegun Road, Ife Roundabout, Ondo and was later transferred to the Claimant by the Proprietress of the school, One Mrs. Aralola Faturoti, who happened to be the Proprietress of the two schools.  The Defendant denied all the allegations against her and asserted that the warning letter (Exhibit H1) issued to her by the Claimant was without any reasonable cause.  She stated that the Claimant suspended her indefinitely without her been given a fair hearing and that she later complied with the instruction of the Claimant and released the password to one Mr. Yemi Faturoti as contained in her letter dated 26th August, 2016 marked in this suit as Exhibit H2.

The Defendant/Counter Claimant therefore counter-claimed against the Claimant as follow:

  1. A DECLARATION that the indefinite suspension of the Defendant/Counter Claimant is illegal, unconstitutional and not in conformity with the offer of appointment between the Claimant and the Defendant/Counter Claimant,  other benefits working hours, private practice/trading, misconduct, probation and termination of appointment, acceptance which is the terms and agreement, offer of an employment between the Claimant and the Defendant/Counter Claimant dated 1st February, 2013
  2. A DECLARATION that the indefinite suspension of the Defendant/Counter Claimant is a breach of contract by the Claimant which negates the offer of appointment dated 1st February, 2013 between the Claimant and the Defendant/Counter Claimant.
  3. A DECLARATION that the indefinite suspension of the Defendant/Counter Claimant by the Claimant is a breach of the Claimant right of fair hearing.
  4. AN ORDER of this Honourable Court compelling the Claimant to immediately pay the salary of the Defendant/Counter Claimant from 26th August, 2016 up till date and till date of Judgment and 10 percent interest on the said amount in which the Defendant/Counter Claimant’s salary is N80,000 (Eighty thousand naira) per month which is N1,360,000.00 (One million, three hundred and sixty thousand naira) till the filing of this suit.
  5. AN ORDER compelling the Claimant to pay the Defendant/Counter Claimant the sum of N1,000,000.00 (One Million Naira) for breach of contract, having failed to follow the content of offer of employment given to the Defendant/Counter Claimant by the Claimant wherein the Claimant failed to follow the rudiments of the offer of employment.
  6. AN ORDER compelling the Claimant to pay the Defendant/Counter Claimant the sum of N1,000,000 (One million naira) as general damages.
  7. AN ORDER compelling the claimant to write a rejoinder in regard of a letter of 26th of August, 2016 and tender unreserved apology in two daily newspapers.
  8. AN ORDER compelling the Claimant to follow the terms of agreement between the Claimant and the Defendant/Counterclaimant dated 1st February 2013 before the Claimant could dismiss/sack the Defendant/Counter Claimant by the Claimant.

The Claimant opened her case on the 22nd March, 2018 and called two witnesses. One Solomon Irivboje as CW1, he adopted his witness statement on oath and further witness statement on oath, he also tendered several exhibits which were admitted and marked Exhibits H1- H7, he was cross examined.  Claimant also called one Mr. Sosanya Ajibola as CW2, who also adopted his witness statement on oath and was cross-examined. The Claimant thereafter closed her case on the 22nd of March, 2018.

The Defendant/Counter Claimant opened her defence on the 8th of May 2018 and testified for herself, as DW1, she adopted her witness Statement on oath and tendered several exhibits marked as Exhibits M1-M11, she was also cross examined. The Defence closed her case thereafter and the case was adjourned for adoption of final written addresses. The written addresses were later adopted by both counsel on the 16th of July, 2018.

The Defendant formulated five issues for determination in her address;

(1)  Whether it’s true that the Claimant employed the Defendant/Counter Claimant based on condition of employment.

(2)  Whether the defendant/Counter Claimant is entitled to her emolument/Outstanding entitlement.

(3)  Whether the claimant has proved her claim before this honourable court.

(4)  Whether the evidence of CW1 and CW2 are reliable.

(5)  Whether the suspension of the defendant/Counter claimant is in compliance with offer of employment from St. Raphael Kiddies School wherein the defendant was transferred to by the Claimant.

I am of the mind that the 5th issue was wrongly framed under issues for determination in the Defendant/counterclaimant’s written address, as it ought to have read “……..transferred to the claimant” not “…….. transferred to by the claimant” in line with the argument on this issue under the argument on her 5th issue.

On issue one, the Defendant/Counter Claimant counsel submitted that the Claimant employed the Defendant via Exhibit M1 and she was later transferred through the instruction of Mrs.Aralola Faturoti, from St. Raphael Kiddies School, Ondo to the Claimant, he submitted that  CW2 admitted same under cross examination when he was asked the following question;

Question – “you are not aware when the Defendant was transferred from St. Raphael Kiddies School Ondo , Ondo State to Hallmark Secondary School, Ondo State”

Answer -“I am aware”.

Counsel argued that this answer negates the averment of CW2 in his statement on oath particularly paragraph 6 which reads

“That I know as a fact that the Defendant was initially employed by St. Raphael Kiddies School Ondo but later applied newly to the claimant she was orally employed and placed on probation pending the time her appointment would be confirmed by the management of the claimant but unfortunately the Defendant could not be able to prove her status as a Chartered Accountant”.

On the second issue, counsel submitted that contrary to the Claimants contention that all the Defendant’s rights and privilege as well as monthly salary were all stopped on the ground that the Defendant was no longer entitled to such privilege, an employee has a right to his salary during the period of suspension. Counsel cited YUSUF VS VOLKSWAGEN OF NIGERIA LTD [1996] 7 NWLR (Pt.463) Page 753 – 754 Paras A-H. Counsel also pointed out the last line of Exhibits M10 and M11, where it was stated that the claimant is processing or about to process the outstanding entitlement of the Defendant/Counter Claimant and under Cross Examination, CW1 and CW2 said “They did not know if the Defendant/Counter Claimant is having an entitlement with the claimant”.  This to counsel buttresses the counterclaim of the Defendant, he therefore submitted that a fact that is never disputed is a fact deemed accepted. Counsel cited EBEINEWE VS STATE [2011] 7 NWLR (PT 1246) 402 AT 416 Paras D.

On issue three, counsel stated that the claim of the claimant was not proved as the claimant admitted paragraph 19 of statement of defence that the defendant/Counter Claimant released the claimant’s document by the instruction of the proprietress to Mr. Yemi Faturoti who is the director of Finance. Counsel pointed out Exhibit H2 (which referred to Yemi as Director of Finance) and argued that in reply to the statement of defence, the claimant never debunked the assertion that documents were released to Mr. Yemi Faturoti, otherwise he (Yemi Faturoti) would have been called by the claimant to debunk this fact.  See the case of EBEINEWE VS STATE (supra)

On issue four, counsel stated that the evidence of CW1 and CW2 is not reliable and this court cannot rely on such evidence. Counsel submitted that where evidence called by the party to prove his averments in his pleadings is in sharp contrast to their testimony, and here this occurs, the result is that the party has failed to prove his case and the proper order is a dismissal of the case.  Counsel cited ABIBO VS. TAMINO [1999] 4 NWLR (Pt 599) 334 at 339 Paras C-E.

On issue five, counsel argued that it is clear through the evidence elicited from CW2 under cross examination that the Defendant was transferred from St. Raphael Kiddies School to the claimant and the condition of employment of the Defendant/Counter Claimant did not in any way give room for suspension. Counsel referred the court to Exhibit M1and posited that parties are bound by the content of their agreement/contract. Counsel cited JERIC (NIG) LTD VS. UNION BANK NIGERIA PLC [2000] 15 NWLR (Pt.691) page 447 SC at Page 462-463 Paras G-A Per Kalgo JSC.

Finally, O. S. Oloniyi, Esq of counsel for the Defendant urged the court to dismiss the claim of the claimant and give judgment in favour of the Defendant/Counter Claimant.

The Claimant’s counsel Ifeoluwa Faloye, Esq thereafter adopted his written address wherein two issues were formulated for determination:

  1. Whether from the totality of evidence adduced by the claimant in this trial, the claimant has successfully discharged the burden of proof in establishing its claim/reliefs.
  2. Whether from the case presented by the Defendant/Counter Claimant and the evidence led at trial, the Defendant has been able to prove her counter claim against the Claimant to be entitled to the reliefs sought.

On issue one, Counsel to the Claimant argued that the crux of the action against the Defendant is wrongful retainer/Detinue. Counsel argued that the withholding of password of the historical database of the Claimant by the defendant caused untold hardship and led to the payment of excessive tax to the Ondo State government, mainly because the available information which could have been assessed by the Board of Internal Revenue to arrive at the accurate tax payable by the Claimant was inaccessible. Furthermore, counsel argued that paragraphs 12, 16, 19, 20, 22 and 23 of the Statement of Facts were not specifically denied by the Defendant, these paragraphs contained averments on the ‘‘ineptitude’’ of the Defendant and that the password involved is two, and what was released by the defendant is the administrative password and not the financial management database password which the Claimant is demanding for in this suit, he argued that it is trite law that facts not denied is deemed admitted. Claimant submitted that the essence of instituting this action is to compel the Defendant to release the Financial Management Database Password as contained in statement of facts and evidence of the Claimant’s witnesses. Counsel posited that the issue of the custody of a password and that same is in the custody of the Defendant/Counter-Claimant is not in dispute and Exhibit H3 lends more credence to the issue of password wherein the Defendant through her solicitor affirmed that a password was handed to her by one Mr. Kunle who strictly warned that it must not be released to any person whatsoever. Counsel argued that during cross-examination of CW1 and CW2 the Defendant/Counter-claimant failed to debunk or controvert the above assertion which is the essence of this suit.  Counsel therefore submitted that the refusal of the Defendant/Counter-Claimant to release the Claimant’s password is unlawful and the claimant is entitled to the password and same should be released to her, he urged the Court to resolve issue one in favour of the Claimant.

 

On Issue two, Counsel submitted that for the court to determine the counterclaim of the Defendant/Counter-Claimant, it is important to note that the relationship between the parties is a master and servant relationship devoid of statutory flavour. Counsel cited CENTRAL BANK OF NIGERIA& ANOR V. MRS. AGNES IGWILLO (2007) LPELR-835 (SC). Counsel submitted that the suspension of the Defendant in this case is lawful, as the Defendant was suspended as a result of her professional incompetence and negligence. Counsel stated that the counter claim of the Defendant is premised on the offer of employment between the Claimant and St. Raphael’s Kiddies School dated 1st February 2013 but the offer of employment is strictly a contract of service between Saint Raphael’s Kiddies School and the Defendant/Counter-Claimant, which ceased to be in effect from the moment the Defendant left Saint Raphael’s Kiddies School for Hallmark Secondary School. Counsel submitted that the Defendant/Counter-Claimant cannot rely on the said Offer of Employment as a valid contract of service between the parties in this suit. He submitted that reliefs 1-3 of the Defendant/Counter-Claimant which are premised on the offer of employment dated 1st February 2013 cannot hold water as the said Offer of Employment (Exhibit M1) is not a contract of service between the Claimant and the Defendant. Also reliefs 4-8 are ancillary reliefs which derive their potency from the main reliefs and as such if the main reliefs fail, the ancillary reliefs will equally fail because something cannot be placed on nothing! Counsel submitted that the Defendant/Counter-Claimant is not entitled to salary for the period of suspension because in a Master/Servant relationship, the adage is, no work – no pay! The Defendant/Counter-Claimant can only be entitled to the unpaid salary if any during the course of her employment. Counsel urged the court to dismiss in its entirety the Counter-Claim of the Defendant for lacking in merit and resolve issue two in favour of the Claimant.

 

I have carefully gone through the processes filed by parties, listened to the witnesses and read the submissions of both counsel in this suit and I have come up with the following issues for determination to wit;

  1. Whether or not the Claimant is entitled to the reliefs as captured in the claim.
  2. Whether or not the suspension of the defendant/ counter claimant is wrongful, and whether she is entitled to the reliefs in the counter-claim.

The claimants claim against the defendant is for;

  1. A DECLARATION that the seizure/withholding by the Defendant of the Claimant’s Financial Management Database Password is unlawful, illegal and without any legal basis.

 

  1. AN ORDER of this Honourable Court mandating and compelling the Defendant to immediately release the Claimant’s Financial Management Database Password which was unlawfully seized/withheld by the Defendant to the Claimant.

 

  1. Two Million Naira general damages for the wrongful detention/withholding of the Claimant’s Financial Management Database Password despite repeated demands by the Claimant.

 

  1. Cost of this action.

Reliefs a & b are interwoven, I will therefore treat the two together. It is the Claimant’s contention that the defendant/counterclaimant refused to hand over the password to the School financial management Database to the school after her suspension and this resulted in the payment of excessive tax to the Ondo State Government, as the available information which could have been gauged by the Board of Internal Revenue to arrive at the accurate tax payable by the Claimant was unreachable. The Claimant cited Exhibit H3 (letter dated 01/06/2017 from the defendant/counterclaimants solicitor to the Claimant) in support of this contention particularly paragraph 2(ii) which reads “…….the person who handed the password to her when she was employed by the school one Mr .Kunle strictly warned her to make the password confidential were met with deaf ears..”. The defendant/ counterclaimant on the other hand contended that she is not a record keeper or person in charge of school files.

However in CW1’s witness statement on oath adopted before this court, it is his testimony that what was handed over by the Defendant was the administrative password and not that of financial management Database, the subject matter of this suit. The Defendant’s response to this under cross-examination is that one Mr Kunle strictly warned her to make the password confidential, she did not however see it fit to call or subpoena the said Mr Kunle or debunk the fact that she is still holding onto the financial management database password. The Historical database of the school by the evidence led contains the financial records of the school and the Defendant being the accountant of the school cannot deny knowledge of the existence of the financial records, especially having admitted she was in possession of the administrative password.

The law is that documentary evidence when made available lends credence to oral evidence. See Military Governor of Lagos State v. Adebayo Adeyiga & Ors [2012] LPELR-7836 (SC)

The law is also trite that he who asserts must prove. See Sec 131 Evidence Act, 2011., see Onyekachi v. MTN Nig.Comm Ltd [2016] 64 N.L.L.R (Part 225) 84 NIC.

The Defendant in Exhibit M2 alluded to an earlier letter written by her to the Claimant but neither the said letter nor a copy of it was ever tendered by her during the course of trial, it was also stated in Exhibit M2 that she forwarded the password to one Mr Yemi Faturoti, but the Claimant disputed this, by averring that what was received was the administrative password and not the password to the financial management database, which is the subject matter of this suit, the Defendant also claimed to have sent the password via email to the Claimant in Exhibit M2 which reads “ ….you directed her to release the password to the Director of Finance MR Yemi Faturoti to be accompanied with a letter of apology and these our client promptly complied with by initially passing the information to him on his mobile phone which he confirmed its receipt and for the avoidance of doubt, our client subsequently on 09/10/16 at 9.43 am sent the same information i.e password with a letter of appeal to the Drector of Finance aforesaid vide his e-mail address and it was duly delivered”. It is surprising that after these representation by the Defendant/Counterclaimant, no fact, documentary evidence or witness was brought to court to strengthen the above assertions, it is the position of the law that he who asserts must prove, thus it fell on the Defendant to provide the evidence in line with her assertion, The assertion that the claimant admitted paragraph 19 of the statement of defence that the defendant had released the password is not disclosed from the evidence available in this case, as the burden of proof lies on the party whom the judgment will go against if a fact is not proven, the Defendant, having asserted that she released the password to one Mr Yemi Faturoti, retains the burden to proof this assertion, especially in view of the denial of the claimant that what was released was the administrative password and not the financial management password  and the Defendant has failed to back up her averments with credible evidence while the Claimant in this case has led uncontroverted evidence before this court by tendering Exhibit H3 which is the Claimant’s copy of Exhibit M2. It is based on this premise that I find after a keen perusal of the evidence before this court, that indeed the defendant/counterclaimant is in possession of the financial management “password” and the Defendant’s seizure/withholding of the Password is unlawful, illegal and without any legal basis, the Defendant is hereby ordered to release the financial management password belonging to the claimant forthwith and I so hold.

On relief c which is a claim for Two Million Naira general damages for the wrongful detention/withholding of the Claimant’s Financial Management Database Password despite repeated demands by the Claimant, The position of the law on damages is explained Per Muhammad, J.S.C. in the case of Chief S.I. Agu v. General Oil Limited [2015] LPELR-24613 (SC)

“Undoubtedly, the award of damages lies primarily within the domain of the trial court. It discharges the function by a judicious estimation of the loss suffered by the plaintiff. A plaintiff who has no difficulty in quantifying the actual pecuniary loss occasioned by the breach, as in the instant case, recovers his loss if same has been specifically pleaded and proved. It is only where the plaintiff has difficulty in quantifying his actual loss that he claims in general damages and, on establishing defendant’s liability, entitles the trial judge to make an assessment of the quantum of damages that can be said to have been a natural or probable consequence of the breach of the contract occasioned by the defendant…….”

The court, per Galinje, J.C.A in Dauda v. Lagos Building Investment Company Ltd & Ors. [2010] LPELR-4024 (CA) explained how general damages is assessed

“The action for general damages is always available as of right when a contract has been broken. General damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the Defendant’s act, and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is qualified is by relying on what could be the opinion and judgment of a reasonable person in the circumstances of the case. See Gari v. Seirafina (Nig) ltd [2008] 2 NWLR (Pt.1070) 1 at 19 A-C; Famojiro v. Otamu [1955-56] NNLR 67; Osuji v. Isiocha [1989] 3 NWLR (Pt.111) 623 at 636 paragraph C-D; Odulaja v. Haddad [1973] 11 S.C357 at 360”

Flowing from the above, a pertinent question that needs to be answered with regards to the instant case is, is the Claimant is entitled to general damages? I reply this in the negative as the loss suffered by the Claimant in this case is the payment of excessive tax which she could have specifically proved by bringing documents to show the difference between the tax paid in previous years and the tax paid in excess due to the withholding of the password by the Defendant. The Claimant did not lead any evidence on this issue and there is no document before this court to show that indeed the Claimant paid tax in excess of what she had been paying previously. I find therefore that the Claimant is not entitled to the damages she is claiming. I so hold.

It is in the light of all the above that I hold in all that the Claimant’s claims succeed in part and for the avoidance of doubt I declare and order as follows;

  1. That the seizure/withholding by the Defendant of the Claimant’s Financial Management Database Password is unlawful, illegal and without any legal basis.

 

  1. The defendant/counterclaimant is hereby ordered to immediately release the Claimant’s Financial Management Database Password which was unlawfully seized/withheld by the Defendant to the Claimant within twenty-four hours.

 

  1. Two Million Naira general damages for the wrongful detention/withholding of the Claimant’s Financial Management Database Password fails.

No order as to cost

Judgment is accordingly entered.

 

 

COUNTER CLAIM

The Defendant filed a counterclaim against the Claimant in this suit and in other to do justice to all the issues in the counter claim the court will look at all the processes before it. The Defendant/ counter- claimant’s case is that her appointment was transferred from St Raphael Kiddies school to the claimant by the proprietress of the two schools. The Claimant however contended that the Defendant is on a new appointment with them, and her contract of employment with St Raphael Kiddies school is no longer subsisting and cannot be relied on by the Defendant/ Counter claimant in this case. In resolving the issue of the applicable contract of employment between both parties, a careful perusal of the Claimant’s statement of facts is needed particularly paragraph 5 which reads “the Claimant avers that the Defendant was thereafter elevated from Claimant’s Nursery and Primary School to the Claimant’s secondary School as the school accountant wherein she served as the head of accounting section” this to me is an admission that she is in the same employment, moreover the Claimant did not proffer any further proof that she was offered a new employment, for  example, no formal application for employment to the Claimant or fresh letter of appointment was brought before the court to support the claim that the Defendant was given a fresh appointment,  the Claimant’s witness, CW2 also admitted under cross-examination that the Defendant was transferred to the Claimant, this reveals that indeed the offer of employment dated 1st February, 2013 Exhibit M1 is the binding contract of employment between the parties. More so, there is evidence of continuous payment of the salaries of the Defendant by the Claimant i.e Exhibit M4 & M5. The position of the law still remains the same. It is that where by words or conduct, a party to a transaction freely makes to the other an unambiguous promise or assurance which is intended to affect the legal relation between them and the former acts upon it by altering his position to his detriment, the party making the promise of assurance will not be permitted to act inconsistently with it. This was the reasoning of the court in the case of BFI Group Corporation v. Bureau of Public Enterprises [2012] LPELR-9339 (SC). The Claimant is therefore estopped from denying that the offer of employment dated 1st February, 2013 is the subsisting contract of employment between the parties. I so find and hold.

The following are the reliefs being sought by the Defendant/Counter Claimant

Starting with reliefs 1, 2, and 3;

  1. A DECLARATION that the indefinite suspension of the Defendant/Counter Claimant is illegal, unconstitutional and not in conformity with the offer of appointments between the Claimant and the Defendant/Counter Claimant.  Other benefits working hours, private practice/trading, misconduct, probation and termination of appointment, acceptance which is the terms and agreement, offer of an employment    between the Claimant and the Defendant/Counter Claimant dated 1st February, 2013.

 

  1. A DECLARATION that the indefinite suspension of the Defendant/Counter Claimant is a breach of contract by the Claimant which negates the offer of appointment dated 1st February, 2013 between the Claimant and the Defendant/Counter Claimant.

 

  1. A DECLARATION that the indefinite suspension of the Defendant/Counter Claimant by the Claimant is a breach of the Claimant right of fair hearing.

It is on record that the Defendant was suspended due to her alleged “incompetence and dereliction of duty”. The word suspension connotes a suspension of privileges and rights of a person and that the employer, during the period of suspension will have the opportunity to decide the fate of his employee. The content of Exhibit M3 reveals that the suspension is for an indefinite period until management decides otherwise and the Defendant was allowed to provide a written explanation on the allegations against her, the Defendant however on her own decided not to take up the opportunity to explain herself until 10 months later when her solicitor wrote Exhibit M2.

Suspension is a tool of business practice and in accordance with judicial decision, to ask the officer being investigated to stay away from the place of work to permit unhindered investigation to be carried out and also allow peace to reign at his place of work is in line with business practice, to save the Master/Employer’s business. The period of suspension will keep such person out of further mischief and provide his employer further time for reflection and rumination. There are both local and foreign judicial decisions approving suspension of an employee pending the final determination of his involvement in the accusation. See Longe v. FBN Plc [2006] 3 NWLR (Pt.967) Pg.228

The law is trite that fair hearing is a constitutional right guaranteed by section 36(1) of the 1999 constitution and in a case of suspension the court has held that it does not amount to breach of fair hearing see Akinyanju v. Unilorin [2005] 7 NWLR (pt.923) 87, even so, in order to prove that fair hearing has been breached, the Defendant/Counterclaimant has the duty to place before this court the terms and conditions of her employment as well as proof of how her right was breached before the court, failure upon which, this will be fatal to her case. Having perused carefully Exhibit H2 and M3 which are one and the same suspension letter dated 26th August, 2016 written to the defendant/counterclaimant, particularly paragraph 4 which reads “….in the interim, you are allowed to provide written explanation to the above observations.” It is obvious that the Claimant gave the Defendant the opportunity of been heard on the allegations against her of which she failed to avail herself from the evidence before this court. I therefore find that there is no evidence to support this leg of the Defendant/Counter claim that her right to fair hearing was breached, I so hold.

The Defendant/Counter claimant’s 4th relief is for –

  1. AN ORDER of this Honourable Court compelling the Claimant to immediately pay the salary of the Defendant/Counter Claimant from 26th August, 2016 up till date and till date of Judgment and 10 percent interest on the said amount in which the Defendant/Counter Claimant’s salary is N80,000 (Eighty thousand naira) per month which is N1,360,000.00 (One million, three hundred and sixty thousand naira) till the filing of this suit.

The Defendant/Counterclaimant is seeking the payment of her emoluments and other entitlements from the Claimant on the ground that her suspension was not in compliance with the offer of employment and she is therefore entitled to her salary during the suspension. The Claimant on the other hand contended that the Defendant/Counter-Claimant cannot rely on Exhibit M1 which is an Offer of Employment with St Raphael’s Kiddies School as a valid contract of employment between the parties as Exhibit M1 did not originate from the Claimant in this case.

Generally, the court recognizes the right of an Employer to discipline its staff in the interest of the organization and will not interfere with right of an employer to discipline any erring employee. See Imonikhe v. Unity bank plc [2011] 12 NWLR (Pt.1262) 624 SC at 649, Shell Pet. Dev.Co. (Nig.)Ltd v. Omu [1998] 9 NWLR (Pt.567)672, see also Nepa v. Olagunju [2005] 3 NWLR (Pt.913) 602. The employer can also suspend the employee with or without pay or at half pay if the contract of employment permits but if the suspension is vindictive then it would be actionable see Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt 103) 40. However, the English cases of Hanley v. Pease & Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653, held that employers cannot suspend without pay where there is no express or contractual right to do so reasons being that in suspending an employee without pay, the employer has taken it upon itself to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended.  And in fact, a person unlawfully suspended from work can seek redress in court and claim his full salary see ACB Ltd v. Ufondu [1997] 10 NWLR (Pt.523) 169 CA. In this case it is the finding that the Defendant/Counterclaimant after her suspension unlawfully withheld the password to the financial management database of the Claimant. It is also on record that the Defendant was suspended due to an alleged “incompetence and dereliction of duty”, her decision to withhold the password of not only the administrative password but the financial management  Claimant’s historical database, property of the claimant, was a direct disobedience of the Claimant’s directive amounting to a breach of her contract of employment, having decided on her own to hold the Employer to ransom , can she now demand the benefit of that same contract for which she is in breach?.

It is apparent from the evidence in this case that the Defendant/Counter claimant did not avail herself of the opportunity given to her to address the issues that led to her suspension, and although the final decision has not been taken on her employment, her failure to respond to the issues raised in Exhibit M3 and withholding the Claimant’s password is a fundamental breach of her contract of employment with the claimant.  Therefore, the claim for salaries and emoluments for the period can not be supported based on the evidence before this court “as he who comes to equity must come with clean hands”. Adekeye Jsc (rtd) captured the meaning of suspension well in the case: Ojeifo Longe V. First Bank Nigeria PLC 2010 6 NWLR PT 189 1 S.C when she said about suspension “….It is a state of affairs which exist while there is a contract in force between the employer and employee, but while there is neither work being done in pursuance of it nor remuneration been paid……” the Defendant herself having breached her Contract of employment cannot seek to take the benefit thereof. The Claimant however admitted that the Defendant has some entitlements with them in their Exhibit M10 and M11, having admitted that they are owing her August 2016 salary, I hereby hold that the Claimant should pay the Defendant/Counter- claimant her salary for August 2016 for services rendered.  I so hold.

On reliefs 5 & 6;

  1. AN ORDER compelling the Claimant to pay the Defendant/Counter Claimant the sum of N1,000,000.00 (One Million Naira) for breach of contract, having failed to follow the content of offer of employment given to the Defendant/Counter Claimant by the Claimant wherein the Claimant failed to follow the rudiments of the offer of employment.
  2. AN ORDER compelling the Claimant to pay the Defendant/Counter Claimant the sum of N1, 000,000 (One million naira) as general damages.

The above reliefs fail for reasons earlier given in this Judgment, as what is due to the Defendant is her one month salary for August, 2016 which has been awarded to her as it is the law that in a contract of employment, what is due to an employee is the accrued rights, or what he would have ordinarily earned, in the course of his employment.

On reliefs 7 and 8;

  1. AN ORDER compelling the claimant to write a rejoinder in regard of a letter of 26th of August, 2016 and tender unreserved apology in two daily newspapers.
  2. AN ORDER compelling the Claimant to follow the terms of agreement between the Claimant and the Defendant/Counterclaimant dated 1st February 2013 before the Claimant could dismiss/sack the Defendant/Counter Claimant by the Claimant.

The above also fail as the reliefs are unsupported, unproven and speculative.

It is in the light of all the above that I hold in all, the counterclaim succeeds in part and for the avoidance of doubt, I hereby declare and order as follows;

  1. The defendant/counterclaimant is entitled to one month salary for August 2016 and the Claimant is hereby ordered to pay her  August, 2016, salary
  2. The sum awarded in this judgment is to be paid within Forty Eight hours from date of this judgment, failing which 5% (five per cent) interest for each day of default is to be paid on the judgment debt/sum until same is finally liquidated.
  3. All other reliefs fails.

Parties should bear their cost.

Judgment is accordingly entered.

 

Hon. Justice A.A Adewemimo

                                                  Judge

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