IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA
DATE: DECEMBER 17, 2019 SUIT NO. NICN/LA/120/2014
BETWEEN
Mr Kehinde Alaba – Claimant
AND
LASU Microfinance Bank Nigeria Ltd – Defendant
REPRESENTATION
I. O. Elemide, for the claimant.
L. B. Shopeyin, with Mrs Aderonke Akande, for the defendant.
JUDGMENT
INTRODUCTION
1. The claimant commenced this action by a complaint filed on 18th March 2014. By the statement of facts, the claimant claimed against the defendant for:
(i) A declaration that the letter of “suspension from work without pay” dated 27/9/2011 signed by one Stephen Aladesawe – Managing Consultant is contrary to paragraph 5(2)(c) of the LASU MICRO FINANCE BANK LIMITED STAFF HANDBOOK of January, 2007 which guided the code of Ethics and Conditions of Employment of Staff of the Defendant Bank as stated in both the letter of offer and Handbook’s introduction and opening paragraph, and is therefore null, void and of no effect.
(ii) An order against the Defendant to reinstate the Claimant to his position prior to the letter of suspension from work without pay dated 27/9/2011.
(iii) An order against the Defendant to pay a lump sum of N3,588,000.00 (Three Million Five Hundred and Eighty-Eight Thousand Naira) being arrears of his salary at N120,000.00 (One Hundred and Twenty Thousand Naira) per month from 1/10/2011 until 28/2/2014 (29 months) together with his leave bonus at N36,000.00 per annum for the years 2011, 2012 and 2013.
(iv) An order against the Defendant to pay the Claimant the sum of N120,000.00 (One Hundred and Twenty Thousand Naira) from March 1, 2014 until he is reinstated to his position prior to the unlawful letter of his suspension from work without pay dated 27/9/2011.
2. The defendant reacted by filing its statement of defence together with the accompanying defence processes, to which the claimant filed a reply and additional written statement on oath.
3. At the trial the claimant testified on his own behalf as CW. His frontloaded documents were admitted and marked as Exhibits C1 to C19. The Court, however, noted that Exhibit C9 is not dated and does not indicate the organization it relates to i.e. it has no nexus to the defendant. Exhibit C13 (Report of the Investigation Panel on Alleged N1,247,500.00 Fraud in Operations Department dated Monday, June 20, 2011) is an incomplete document and is not signed. And in Exhibit C15, Appendix 8 is missing. For the defendant, Shokunbi Ebenezer Olatunde, Internal Auditor with the defendant, testified as DW. The defendant’s frontloaded documents were admitted and marked as Exhibits D1 to D9. The Court noted that Exhibit D3 has no effective date of commencement on it except for the date when stamp duties was paid. And Exhibit D9 is an incomplete document – it has no date, no signature and it is not known who wrote it and the membership of the panel constituted to look into the issues addressed in the report. The defendant later brought the signed copy of Exhibit D9, which was accepted by the Court and marked as Exhibit D9(a). However, the Court noted that Exhibit D9(a) is undated, the actual signatory is not disclosed and there is nothing on the face of it tying it with the defendant. Parties were the asked to in their final written addresses address the Court on the admissibility or otherwise of these marked documents.
4. At the close of trial, parties filed and served their final written addresses. The defendant’s final written address was filed on 4th September 2019, while the claimant’s was filed on 9th October 2019. The defendant’s reply on points of law was filed on 29th October 2019.
THE CASE BEFORE THE COURT
5. To the claimant, consequent upon Exhibit C1 he resumed work with the defendant as the Chief Operating Officer (Managing Director) on 1/12/2006 and the appointment was later confirmed by Exhibit C2. The last statement in Exhibit C1 at its last paragraph (that is paragraph 7.1) referred the claimant to defendant company’s Rules and Regulations admonishing him to acquaint himself with it. That the photocopy of the original printed LASU Microfinance Bank Limited Staff Handbook (Exhibit C8) which is the claimant’s very original copy (as that is what the defendant gave him), which has handwritten on its cover page “Draft and corrected” and which is the document of Rules and Regulations guiding the operations of the defendant with her members of staff has as its opening paragraph under procedural matter on its very first page under introduction “LASU Microfinance Bank Ltd welcomes you into its establishment with sincere wishes for your successful career within its fold”. That this Handbook is designed to acquaint employees with the Code of Ethics and conditions of employment in the Bank. Paragraph 5 of Exhibit C8 is devoted to Staff Discipline and it specifically states at is heading that “The exercise of disciplinary powers is vested in the Head Office Management of the Bank through its Human Resources Department, and is subject to appropriate procedures as set out below…”
6. That contrary to paragraph 5(2)(c) of Exhibit C8 (LASU Microfinance Bank Ltd Staff Handbook) which deals with suspension under the disciplinary procedure of paragraph 5(2), a supposed management consultant of the defendant issued Exhibit C3 against the claimant and the defendant acted upon same and has kept the claimant suspended from work since 27/9/2011 till date. That at a convenient point where the defendant felt that the Handbook would avail her (not withstanding that their argument is not to regard it as a document of authority in this case) it referred to it at paragraph 16 of her statement of defence and stated thus: that “the Defendant further avers that these acts were contrary to the general duties imposed on the Claimant by virtue of his position and conditions stated in its Staff Hand Book”.
7. That having been rendered useless from work wrongly and not knowing what to do for about one and a half months, the claimant through Exhibit C4 on 15th November 2011petitioned the Director, Other Financial Institutions Department of the Central Bank of Nigeria, the Federal Government Agency that supervises and regulates the affairs/activities of other financial institutions apart from the regular banks in Nigeria and which derived its supervisory and regulatory powers by virtue of section 28(1)(b) of the CBN Act 24 of 1991 (as amended) and also in pursuance of sections 56 – 60A of the Banks and Other Financial Institutions Act (BOFIA) 25 of 1991 (as amended), and made an expose of the activities of the defendant and representatives/officers of its major shareholder – the Lagos State University (LASU) – part of which led to the dwindling fortunes of the defendant and not addressed and nipped in the bud, but instead heaped the blame on the claimant and made a scapegoat of him.
8. The claimant went on that after waiting for another one full year and he did not see the effect of Exhibit C4, and it seemed like he had been forgotten by his employer, he employed the services of a Law Firm with instruction to intimate and remind the management of the defendant bank through its Chairman of his plight (the way he was being treated by the defendant) even though he had since been investigated and not found culpable of any offence; and it was upon this that Exhibit C5 was written and served on the defendant. Exhibit C6 was also written and served on the supervisory body which the claimant had in the first instance reported the treatment meted on him by the defendant to. When after another 15 months (since the claimant’s solicitor’s letter to the defendant) there was still no response of any sort, the claimant again instructed his solicitors to write and give the defendant a final warning, the neglect thereupon which he would have no choice but to resort to the court to have the matter resolved; and Exhibit C7 was written and served upon the defendant. That by the time Exhibit C18, which was a sort of response by the defendant to the claimant’s Exhibits C5 and C7, was served on the claimant’s counsel, the case of the claimant had been filed in Court and reference could only thereafter be made to it in the claimant’s reply to statement of defence. That Exhibit C18 written almost two and a half years after Exhibit C5 was written to the defendant still exhibits (sic), carriers (sic) and portrays the name of the Claimant who has been on suspension (albeit wrongly and illegally) among the list of the Board of Directors at the foot note, as the Managing Director of the defendant Bank and the phrase “the Board will keep you posted on any development on the matter as soon as possible” in the said Exhibit C18 smacks of insincerity on the part of the defendant which was not ready to do anything soonest or at all at serving justice to the claimant.
9. To the defendant, the claimant’s non-complaint or protest about his suspension to the defendant before Exhibits C4 – C6 supports the defendant’s contention that the claimant did not exhaust the remedies available before coming to court. That it should be noted that the main crux of the claimant’s case are the averments in paragraph 9 of the statement of facts supported by paragraphs 11 – 12 of his evidence in chief, which place copious reliance on the draft Staff Handbook as the document that entitled him to the reliefs sought and/or the conditions of service guiding his employment with the defendant (Exhibit C8). Also, that as an employee his suspension cannot be for more than 6 months and he is entitled to be paid half salary from the date of suspension until date of completion of investigation and that he has remained suspended and unpaid for more than 6 months. The defendant, however, countered that the averments in paragraph 9 of the statement of facts are not supported by credible oral or documentary evidence placed before the Court by the claimant. First, the claimant failed to show that Exhibit C8 is an operative document regulating his conditions of service with the defendant. Secondly, It is explicit on Exhibit C8 that same is a draft as noted by the Court and yet to come into operation. This is further strengthened by the fact that there are many alterations and corrections on Exhibit C8.
10. It is also the defendant’s case that from the evidence presented before the Court the contract between the claimant and defendant is not one clothed with statutory flavor where the conditions are explicitly spelt and the employer must comply with them but one which is governed by agreement of the parties which the claimant has failed to prove that the defendant is in breach of. Additionally, that the fact that the employer is a statutory body, or the majority shares in the defendant are owned by the Lagos State University, a statutory body, does not mean that the conditions of service must be of a special character ruling out the incident of master servant relationship. That the Court must still confine itself to the terms of contract of service, citing Fakayade v. Obafemi Awolowo University Teaching Hospital [1993] 5 NWLR (Pt. 291) 47 at 57.
11. The defendant continued that the claimant who by nature of his duties was required to be honest, diligent, truthful and prudent in the discharge of his duties at all times, was instead negligent and unprofessional in the performance of his duties. He was involved in financial malpractices, misappropriation of funds, mismanagement of customers account and breach of regulatory guidelines in view of the nature of the business of the defendant being banking, referring to especially Exhibits D3 – D9 as being germane to the case presented by the defendant.
THE SUBMISSIONS OF THE DEFENDANT
12. The defendant first raised objection to paragraphs 3, 6, and 8 of the claimant’s reply (supported by his further evidence in chief). To the defendant, these paragraphs raised new issues and were not filed in response or answer to the averments in paragraphs 8, 14,15, 16, 17 and 18 of the statement of defence. Furthermore, that paragraph 10 of the reply was not filed in response to any paragraph of the defence. The defendant then submitted that it is the law that a reply is not filed as a matter of course but where necessary to react to novel or new issues raised by the adverse party in his defence. It is to be filed when an averment raised in the defence calls for a reply as it is not a repair kit to put right any lacuna or error in the statement of claim. Hence the essence of a reply is to deal with new points arising from the defendant’s defence. That in the absence of new averment that calls for a reply it is otiose and the Court is entitled to discountenanced it, citing Salihu v. Wasiu [2016] LPELR-26062(SC).
13. The defendant further submitted that some of these paragraphs particularly paragraphs 6, 7, 8 and 10 which are facts within the knowledge or known to the claimant or ought to have been included in the statement of facts not in the reply. It is further submitted that these paragraphs are inconsistent with the previous pleadings of the claimant or case presented by the claimant. These facts are unrelated to the issue of unlawful suspension complained and reliefs claimed by the claimant, referring to Civil Procedure in Nigeria 2nd Edition by Fidelis Nwadialo at page 361.
14. The defendant then proceeded to raise objection as to the admissibility of some of the exhibits tendered. To the defendant, some of the documentary evidence presented by the claimant in support of his reply are undated, irrelevant, or not connected to the averments, while some were not tendered at all. That Exhibit C9, which the claimant claimed absolved him but carried out on 2 officers by the Internal Auditor is undated, did not indicate or disclose any organization and/or has no nexus with the defendant. That Exhibits C10, C11, C14 and C15, part of which and/or appendix was missing, did not absolve the claimant of any financial impropriety rather the comment on Exhibit C14, reprimanded the claimant while Exhibit C13 is not signed and is incomplete. Furthermore, that Exhibits C16 and C17 are irrelevant to the reliefs claimed by the claimant. Exhibit C18, a response by the defendant to Exhibit C7, contrary to the claimant’s assertion that the defendant was unresponsive, adamant and unperturbed by his plight and letters respectively, written after his suspension, rather than support the claimant’s case, is but proof of the averments in the defence particularly paragraphs 15 – 17 on which evidence was led by DW that the suspension of the claimant was as result of the investigations into the reckless lending and non-compliance with financial regulations and directions by the regulatory agencies, by the claimant and other management staff, which was yet to be concluded before the claimant instituted this action. Exhibit C19 by virtue of section 102(a)(ii) of the Evidence Act 2011 is a public notice. That by the combined effect of sections 87(a), 88, 89(e) and 90(c) of the Evidence Act, only certified true copies are admissible, referring to Araka v. Egbue [2003] FWLR (Pt. 175) 507, Ogundele & anor v. Agiri [2009] 12 SC (Pt. 1) 135 and Ayaoha v. Obioha [2014] 6 NWLR (Pt. 1404) 445 at 476. That it is clear that Exhibit C19 was not certified in accordance with the provisions of sections 104 Evidence Act and produced in proof as stipulated by section 105 of the Evidence Act, citing Nwabuoku v. Onwordi [2006] 5 SC (Pt. III) 103 at 114 – 115 and urging the Court to expunge same.
15. On Exhibits C9, C 13 and C15 and others that are either undated, unsigned or incomplete, the defendant submitted that the Court should disregard them and should not give any weight to them. That it is the law that a document made by a person in whatever capacity must be signed by him in order to authenticate it and imbue it with authority. Where same is not signed by the maker, it is a worthless document which lacks any efficacy in law and ought not to be admitted. But where it is inadvertently admitted, the Court should not attach any probative value to it. So too a document which bears no date of execution, or date it comes into effect, uncertain or incomplete, citing Ayaoha v. Obioha (supra), Omega Bank (Nig) Plc v. OBC Ltd [2005] 8 NWLR (Pt. 928) 547, Ojo v. Adejobi [1978] 11 NSCC 161, Ognahon v. Regd. Trustees of CCC & anor [2002] 1 NWLR (Pt. 749) 675, Amizu v. Nzeribe [1989] 4 NWLR (Pt. 118) 755, FRN v. Bankole [2014] 11 NWLR (Pt. 1418) 337 at 357 – 358 and ICAN v. Unegbe [2012] 2 NWLR (Pt. 1284) 216. That Exhibit C9 also did not indicate or disclose the maker or organization and has no nexus with the defendant, while Exhibit C13 did not absolve the claimant and the comment on Exhibit C14 reprimanded him.
16. That the Court should also not attach any weight to Exhibits C10, C11, C14, C15, C16 and C17 as they are either inconsequential or are not a direct response or answer to the averments in the defence. On Exhibits C15 – C16, that the claimant is not the maker of these documents and they were not addressed to him. Thus, that the claimant in tendering these documents failed to satisfy the proviso to section 83 of the Evidence Act. That a document not tendered by the maker commands no probative value because he cannot be subjected to cross-examination on it, citing Agi v. Access Bank [2014] 9 NWLR (Pt. 1411) 121.
17. The defendant went on that though by virtue of section 12 of the National Industrial Court (NIC) Act 2006 the Court may depart from the provisions of the Evidence in the interest of justice, which is not the case here as there is no justice that will be served by the claimant tendering unsigned and undated irrelevant documents.
18. The defendant then submitted three issues for determination, although issues (2) and (3) were alternatives to issue (1). The issues are:
(1) Whether the claimant in view of the evidence of the pendency of non-conclusion of the investigation into misappropriation of fund and not having exhausted the internal remedy of the defendant this action is competent.
Alternative to Issue (1)
(2) Whether the claimant from the evidence before the Court discharged the burden of proof on him and is entitled to succeed on his claims in this action.
(3) Whether is the answer to question (2) is in the affirmative the burden of proof shifts to the defendant and it discharged that burden.
19. To the defendant, issue (1) is a challenge to the competence of this action due to the contents of Exhibit C18, a response by the defendant to Exhibit C7, contrary to the claimant’s assertion that the defendant was unresponsive, adamant and unperturbed by his plight and letters respectively written after his suspension, which supports the averments in the defence particularly paragraphs 15 – 17 of the defence on which evidence was led by DW that the suspension of the claimant was as result of the investigations into the reckless lending and non-compliance with financial regulations and directions by the regulatory agencies by the claimant and other management staff which was yet to be concluded before the claimant instituted this action. The defendant also submitted that the claimant failed to prove the conditions of service between him and the defendant given his sole reliance on Exhibit C8. That DW under cross-examination testified to the fact that the investigation is yet to be concluded thus the claimant failed to exhaust or wait for the conclusion of the investigation before coming to Court.
20. The defendant further submitted that Exhibit C18, the defendant’s response to Exhibit C7, coupled with Exhibit C4, written without prior complaints to the defendant about his suspension, is tantamount to an admission that he failed to complain or wait for the result of investigation before coming to Court. That in failing to formally complain to the defendant and wait for the outcome of the investigation, the claimant failed to fulfill the condition precedent needed to activate the jurisdiction of this Court to entertain this action, citing Ajao v. Sonola [1973] 5 SC 119 at 123. To the defendant, asking the claimant to await the outcome of the investigation or exhaust the internal remedy of the defendant is not unconstitutional or depriving the claimant access to the Court. The defendant further submitted that it is well within the purview of substantive law backed by and judicial authorities that issues of law can be taken by a Court if in its opinion it will determine the case instead of going through the rigors of trial or evaluation of evidence led at trial particularly when this relates to the competency and jurisdiction of the Court. That the Court should so hold and come to the conclusion that these issues can determine this action. The defendant added that there must be a cause of action before a person can approach the Court. The defendant then urged the Court to resolve this issue in its favour and strike out this action for being incompetent for which the Court lacks jurisdiction to entertain the same.
21. Issue (2) is whether the claimant discharged the burden of proof as to be entitled to his claims. To the defendant, the nature of the claim and the relief sought determines the burden or onus of proof imposed on a party, which burden in the instant case is on the claimant, citing section 131 of the Evidence Act 2011, Abimbola v. Abatan [2000] FWLR (Pt. 46) 989, Okhuarobo v. Egharevba [2002] 5 SC (Pt. I) 141, also reported as Okhuarobo v. Aigbe [2002] FWLR (Pt. 116) 869, Itaupma v. Ekpeme [2000] FWLR (Pt. 16) 2809 and Kyari v. Alkali [2001] FWLR (Pt. 60) 1481 at 1484. That the reliefs claimed by the claimant are declaratory and an order for reinstatement and payment of arrears of salary, leave bonus and payment of salary. That the claim for declaration is a discretionary relief in nature and is granted at the discretion of the Court, not as a matter of course. That though this discretion must be exercised judicially and judiciously, the Court must be satisfied that a very strong and cogent case is made out on the pleading and evidence placed before the Court, citing Barclays Bank v. Ashiru [1978] 6 – 7 SC 99 at 130 – 131 and Ibeneweka v. Egbuna & anor [1964] WLR 219 at 224.
22. To the defendant, as regards reliefs (1) and (2) claimed by the claimant, it is almost impossible for the Courts to grant declaration in a master/servant relationship and/or contract of employment founded on agreement of the parties; as it is the law that the Court cannot impose a servant on an unwilling employer, Oshisanya v. Afribank Nig. Plc [2007] 6 NWLR (Pt. 1031) 565 at 581. That the claimant failed to discharge the burden of proof placed on him by law by credible, cogent and direct evidence on his claims before the Court. That the claimant failed to prove of the existence of conditions of service between him and the defendant that will entitle him to his claims before the Court particularly his claim as to re-instatement as he failed to show that his employment is clothed with statutory flavor that will entitle him to same. Also his claim as to salary and the sum of N36,000.00 as leave bonus must also fail.
23. The defendant went on that it is elementary principle of law that parties are bound by their pleadings and all facts or evidence led not pleaded or contrary to pleadings or any part of the evidence not supported by pleadings goes to no effect, citing George & ors v. Dominion Flour Mills [1968] ANLR 71 at 77 and Ogidan v. Oliha [1986] NWLR (Pt. 91) 78. That the claimant, therefore, failed to support this aspect of his claim with evidence. The defendant then urged the Court to resolve this issue in its favour and dismiss the case of the claimant.
24. Issue (3) is whether the burden of proof shifted to the defendant as per sections 133(2), 135(1) and (2) and 139 of the Evidence Act. To the defendant it has no counterclaim against the claimant and so is under no burden. However, that he had led evidence as to the fact that investigation into the allegation of financial misconduct against the claimant and others was still pending before the institution of this case, evidence that is further confirmed by the claimant tendering Exhibit C18. Furthermore, that the defendant showed the reason for the investigation that led to the suspension of the claimant which is yet to be concluded before the claimant instituted this action, referring to Exhibits D3 – D9 and urging the Court to resolve this issue in favour of the defendant. In conclusion, the defendant urged the Court to dismiss the claimant’s claims against the defendant with substantial cost as it is clear that the claimant instituted this action to prevent the conclusion of investigation and consideration of the allegations against him.
THE SUBMISSIONS OF THE CLAIMANT
25. The claimant on his part submitted four issues for determination, namely:
(a) Whether the claimant’s action in court is competent having regard to the defendant’s argument that the claimant did not exhaust the internal remedy of the defendant before he filed his action in court.
(b) Whether Exhibit C8, the LASU Microfinance Bank Limited Staff HandBook “draft and corrected” of January 2007 is the document that defines the relationship between the defendant and her staff members among whom is the claimant.
(c) Whether Exhibit C3, “letter of suspension without pay”, dated 27 September 2011) written by the management consultant of the defendant, a Mr Stephen Aladesawe, is right, lawful and/or valid against the claimant.
(d) Whether in the interest of justice, the claimant should not be reinstated back to his position with the defendant prior to “the letter of suspension from work without pay” and also paid all accrued salaries and allowances.
26. On issue (a), the claimant submitted that the defendant is a Microfinance Bank in Nigeria. That by virtue of section 28(i)(b) of the Central Bank of Nigeria (CBN) Act 24 of 1991 (as amended) and in pursuance of the provision of sections 56 to 60A of the Banks and Other Financial Institutions Act (BOFIA) 25 of 1991 (as amended) the content of which has now been subsumed into section 61 of the BOFIA,Cap B3 LFN 2007, the CBN supervises and regulates activities of other Financial Institutions and specialized banks among which are Microfinance Banks (MFBs) that seek to take savings/deposits from members of the public and engage in Microfinance intermediation services for their clients in Nigeria. That upon his suspension, the first thing the claimant did was to complain to the regulatory and supervisory body of the defendant as evidenced by Exhibit C4, and thereafter by Exhibits C5 and C7 to the defendant itself but the defendant did nothing before the claimant went to Court on 18/3/2014. Yet the defendant’s defence is Exhibit C18 (to the effect that the claimant was still being investigated), a letter that was served on the claimant’s solicitor after the claimant filed this action. That even under cross-examination on 15/5/2019 (seven and half years after suspension), DW still informed the Court that investigation was yet to be concluded by the defendant in the claimant’s case. The claimant then referred to J. A. Razi v. District Registrar & ors (1996) 1 CLR 140 (Guj) reported in Labour Law Digest (1996 – 97), an exhaustive High Courts on Labour and analogous Allied Laws Reported in All important Journals, edited by V. K. Khabanda, B. Com. LL.B, V. k. Khabanda B.Sc) at page 613, where it was held that “suspension if prolonged for a year, it is agonizing for the petitioner”. That in that case, where inquiry directed to be concluded within 4 months dragged on for 6 years, it was held that the suspension had automatically come to an end.
27. The claimant went on that paragraph 20 of DW’s written statement on oath to the effect that the claimant did not take steps or exhaust all the remedies available and fulfill all the conditions precedent before the institution of this action, which is the whole essence of paragraphs 5.1 – 5.8 of the defendant’s argument, is a fallacy as no authority can be bigger than that created by law as it is done by the CBN Act and BOFIA in this case to handle matters relating to institutions created under it, and every internal remedy available to the claimant (and there was none brought to the attention of the Court by the defendant in this case) is still subject to the authority to which the claimant took his appeal via Exhibit C4 such that the defendant’s argument on the competence of this action and the jurisdiction of this Court on same is only an academic exercise in futility. That this case at the time it was filed was ripe for Court and the Court has jurisdiction to hear same. The claimant then referred the Court to sections 81(1)(b) and 82(i)(a) of the Labour Act, which permits complainants in an employment contract to approach the Court.
28. On issue (b) i.e. whether Exhibit C8 is the document that defines the relationship between the defendant and the claimant, the claimant submitted that by Exhibit C1, the claimant’s letter of appointment dated 1/11/2006, the claimant in the last sentence of paragraph 7.1 thereof was admonished by the defendant to acquaint himself with the company’s rules and regulations. That the only rules and regulations given to him since he joined the defendant is Exhibit C8, which is a photocopy of an originally printed document and carries on its front page: “LASU Microfinance Bank Limited, Staff Hand Book, Jan. 2007” and also has thereon written in longhand, “draft and corrected”. That even DW under cross-examination on 15/5/2019 identified Exhibit C8 as the Staff Handbook of the defendant. That without much ado therefore, it is safe to conclude that the rules and regulations referred to by the defendant in the claimant’s Exhibit C1 (letter of appointment) is Exhibit C8; and contrary to the argument of the defendant at paragraph 2.10 of their final written address, Exhibit C1 corroborates the fact that Exhibit C8 is the document of rules and regulations binding the relationship between the defendant and the claimant in this case.
29. Issue (c) is whether Exhibit C3, the letter of suspension without pay written by the management consultant of the defendant, is right, lawful and valid. To the claimant he was suspended from work by a consultant contrary to section 5(2)(c) of the terms and conditions of service contained in Exhibit C8, the Staff Handbook, which is the guiding rules and regulations of the defendant company, which states specifically that “if an employee is suspected of a serious misconduct, he will be suspended from duty by Human Resources Department…” That at the time the Managing Consultant came on board the affairs of the defendant company, the Human Resources Department of the defendant was effectively in place and functional, and has always been; so that going by Exhibit C8, the letter of suspension from work without pay dated 27/9/2011 signed by one Stephen Aladesawe, “Managing Consultant” on behalf of the defendant to the claimant has no basis and must thus be regarded as null, void and of no effect ab initio by this Court since it was the duty of the Human Resources Department, and not any other person, to issue letter of suspension, wherever appropriate on behalf of the defendant.
30. The claimant went on that according to section 5(2)(c)(i) of the terms and conditions of service contained in Exhibit C8, if an employee is suspected of a serious misconduct he will be suspended from duty by Human Resources Department for a period not exceeding six (6) months and paid half of his basic salary only from the date of suspension until internal investigations are completed. However, that if the investigations are not concluded within six months, the employee shall remain suspended until such a time that the investigations are concluded. If he is exonerated, he will be recalled and the balance of his basic salary and entitlements will be paid to him from the date of suspension. If on the other hand, he is not exonerated from all blame, his continued employment in the Bank may be reviewed. And that by section 5(2)(c)(ii), if the Police suspects an employee of a criminal offence, he will be suspended and paid half of his basic salary only from the date of suspension for a maximum of one year after which the Bank shall be free to terminate his appointment. If he is found innocent within the period of one year, he will be recalled and the balance of his basic salary and entitlements will be paid to him from the date of suspension. But if prosecution is withdrawn to prevent embarrassment or as an act of forgiveness, he may still be dismissed or terminated as the Bank deems fit.
31. To the claimant, contrary to section 5(2)(c)(i) and (ii), both of which entitle him to payment of half his basic salary for at least one year before his fate with the defendant is determined, he has not been paid from the date of his suspension, and despite the fact that there is nothing to show his culpability under either section 5(2)(c)(i) or section 5(2)(c)(ii), and he has not been recalled back to duty ninety-six (96) months after being unlawful suspended from work. That it is apparent as exposed in both Exhibits C4 and C19 (which has 2 responses from the Police to one single letter of request) that it is the powerful men at the helm of affairs of the defendant who perverted justice to save their kith and kin that are behind his predicament, as they were ready to sacrifice others without clout for the sins committed by their loved ones in the defendant company.
32. The claimant continued that on the provision of section 5(c) of Exhibit C8, the position of the law, the contra proferentem rule, is that where there is ambiguity or uncertainty in the meaning and scope of an exclusion clause in a contract, it will be interpreted against the party who inserted the clause. Therefore, such meaning which protects the interest of the other party would be readily adopted, so that in the circumstances of this present case, wherever there seems to be ambiguity in paragraph 5(c) of Exhibit C8 i.e. the suspension section, such ambiguity would be resolved in favour of the claimant. That in the instant case, this position even finds support in paragraph 5(d) of Exhibit C8 dealing with termination of appointment, which states that termination of appointment, where desirable, must be done within 12 months of any offence or its culpability. That since the claimant is not culpable of any offence, the defendant could not find any moral justification to terminate his appointment thus “the limbo status” of the claimant, as the defendant did not know what to do with him, there being no case which they could hang on his neck to destroy him.
33. The claimant went on that he has been suspended from work without pay albeit illegally since 27/9/2011, yet the only defence of the defendant in their statement of defence filed on 5/3/2015 (four years after suspension despite claimant’s Exhibit C5 and C7) is that investigation by the defendant was yet to be concluded. That even under cross-examination, the defendant was yet to conclude investigations against him. That in the same vein under the same cross-examination DW admitted that there is no court case against the claimant. To the claimant, since the Managing Consultant had no right to issue the letter of suspension to him, his suspension was null and void; as such, the issue of payment of half of basic salary during suspension should not even have arisen. In the first instance, that there should not have been any suspension by the consultant. It was adding salt to injury to have suspended the claimant illegally and thereafter refuse his entitlement as provided for in the guiding Rules and Regulations. Also, that the Court by virtue of section 82(i)(a) of the Labour Act has power to adjudicate over the claimant’s complaint against the respondent arising out of the relationship between them and rule as appropriate.
34. Issue (d) is whether in the interest of justice the claimant is not entitled to reinstatement back to his position prior to the suspension and also paid all his accrued salaries and allowances. To the claimant, under the law and in equity, the claimant is entitled to his full salary of N120,000.00 per month from 1/10/2011 until 30/11/2019 which amounts to N11,520,000.00 (Eleven Million, Five Hundred and Twenty Thousand Naira), his leave bonus at N36,000.00 per annum for the years 2011 until 2019 which amounts to N324,000.00 (Three Hundred and Twenty-Four Thousand) Naira and until final judgment together with reinstatement back to his position prior to his suspension from work and it is only proper that the Court by virtue of section 82(i)(a) of the Labour Act should ensure that justice is done in this case.
35. On the issue of the admissibility of documents tendered by the claimant but which are incomplete, the claimant submitted that it has been noted by the Court that both Exhibits C9 and C13 tendered by the claimant are incomplete in that while it is not clear as to whether both are related to the defendant in this case, in that neither is headed (letter heading) in the defendant’s name; and one is undated while the other has the concluding page missing. To the claimant, obviously but incidentally, the concluding page of Exhibit C13, which is the concluding part of the recommendation made and the page which carries the signature of the author, fell off unnoticed while the claimant was compiling evidence in support of his cause. That the date was inadvertently left out in Exhibit D coupled with the fact as could be seen in Exhibits C9, C13 and D9 tendered by both parties before the Court that there is a general nonchalance at the defendant Bank in the use of the defendant’s name as heading (letter heading) to the reports of their mandates.
36. In any event, that DW under cross-examination identified both the signature and the name of the author of Exhibit C9 and also confirmed his own name as the last in the list of the Panel members of Exhibit C13 while also remembering why the panel that brought Exhibit C (sic) about was set up by the defendant, citing Mrs Ethel Onyemaechi David Orji v. Dorji Textiles Mills (Nig) Ltd Suit No. SC 62/2003 of 18th December 2009 where Niki Tobi, JSC stated that:
admission is not a game of chance. It is not a subject of speculation or conjecture. On the contrary, it is a total and comprehensive statement orally made or in writing suggesting a clear and unequivocal inference as to any fact in issue or relevant fact unfavourable to the conclusion contended by person by whom or in whose behalf the statement is made.
That DW, against his will, had to admit and confirm both Exhibits C9 and C13 because they are real and true, citing Iliyasu Suberu v. The State [2010] 1 NWLR (Pt. 1176) 494 at 501, which held that relevancy is the main purpose for admissibility of any evidence or document under the law of evidence. Also referred to by the claimant is Mallam Sani Ogu v. Manid Technology & Multipurpose Cooperative Society Ltd [2011] 8 NWLR (Pt. 1249) 345 at 349, where it was held that once a piece of evidence is relevant, it is admissible in evidence irrespective of how it was obtained. In other words, admissibility of evidence is based on relevancy.
37. The claimant went to cite George v. State [1999] 1 NWLR (Pt. 585) 152 of 160, which held that what is paramount is doing justice in the matter, and justice must not be abstract or technical justice, but real and tangible justice; Edet Akpan v. State [1986] 3 NWLR 226, which held that the courts should see to it that justice is never defeated by technical rules of procedure, which rules should be seen as subservient handmaids to justice and not as omnipotent master at war with justice; Oloruntoba-Oju v. Abdulraheem [2009] 5 – 6 SC (Pt. II) 1 on the issue of technicality in cases; and section 12(2)(b) of the National Industrial Court (NIC) Act 2006, which provides that this Court shall be bound by the Evidence Act but may depart from it in the interest of justice. The claimant called on the Court to in this case do just that. In conclusion, the claimant urged the Court to hold in his favour and against the defendant in this case.
THE DEFENDANT’S REPLY ON POINT LAW
38. In replying on points of law, the defendant submitted that in view of the reliefs sought by the claimant and the evidence adduced in this case, most of the 4 issues for determination formulated by the claimant are narrow, argumentative and proliferation and duplication of issues. Furthermore, that these issues do not cover all the evidence and issues of law that call for determination in this action and/or are repetition of some of those formulated by the defendant. That issues (2) and (3) formulated in the defendant’s address cover all those formulated by the claimant; hence the 3 issues for determination formulated by the defendant should be adopted and the Court should rely on same in the determination of this case.
39. The defendant then proceeded to first react to some of the facts distilled by the claimant in his address. Since this is outside of the remit of a reply on points of law, and the defendant thereby merely re-argued his case, I shall accordingly discountenance that bit (incidentally the chunk) of the defendant’s reply submissions, which can be found in paragraphs 4 to 14 of the reply on points of law. What, therefore, remains as valid reply on points of law can be said to be paragraphs 15, 16 and 18 of the defendant’s reply on points of law. Accordingly, the reliance of the claimant on the foreign case of J. A. Razi v. District Registrar was argued by the defendant as not just irrelevant to this case but also not binding on the Court – at best only persuasive Furthermore, that there is no evidence placed before the Court by the claimant to show that investigation must be concluded within a specific time.
40. On section 81(1)(b) of the Labour Act, in view of the submissions of the defendant on Exhibit C8, the defendant submitted that the claimant’s position was preposterous as there is no evidence of any contract placed before the Court by the claimant. The defendant went on to also submit that all the submissions of the claimant are misconceived and inapplicable to the facts of case. Furthermore, that most of the authorities cited are irrelevant and cited out of context, urging the Court to so hold. In the final analysis, the defendant urged the Court to dismiss the claimant’s case with substantial cost.
COURT’S DECISION
41. I have carefully considered the processes filed and the submissions of the parties. I already indicated that the consideration of the facts of the case by the defendant in its reply on points of law was outside the remit of a reply on points of law and was merely a re-argument of its case as earlier presented by the defendant. A reply on points of law is meant to be just what it is, a reply on points of law. It should be limited to answering only new points arising from the opposing brief. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. It is not a form to engage in arguments at large. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA), Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC), Ojo v. Okitipupa Oil Palm Plc [2001] 9 NWLR (Pt. 719) 679 at 693, Ogboru v. Ibori [2005] 13 NWLR (Pt. 942) 319 and Cameroon Airlines v. Mike Otutuizu [2005] 9 NWLR (Pt. 929) 202. The effect of non compliance is that the Court will discountenance such a reply brief. See Onuaguluchi v. Ndu [2000] 11 NWLR (Pt. 590) 204, ACB Ltd v. Apugo [1995] 6 NWLR (Pt. 399) 65 and Arulogun & ors v. Aboloyinjo & anor [2018] LPELR-44076(CA). I have accordingly discountenanced paragraphs 4 to 14 of the defendant’s reply on points of law.
42. The defendant had raised objection to paragraphs 3, 6, and 8 of the claimant’s reply to the statement of defence on the ground that the paragraphs raised new issues and were not filed in response or answer to the averments in paragraphs 8, 14, 15, 16, 17 and 18 of the statement of defence. Furthermore, that paragraph 10 of the reply was not filed in response to any paragraph of the defence. Additionally, that paragraphs 6, 7, 8 and 10 which are facts within the knowledge of or known to the claimant and so ought to have been included in the statement of facts not in the reply. And that these paragraphs are inconsistent with the previous pleadings of the claimant or case presented by the claimant as well as being unrelated to the issue of unlawful suspension complained of and the reliefs claimed by the claimant.
43. To start with, the defendant in paragraphs 7 to 17 of the statement of defence stated the infractions committed by the claimant and for which he was suspended. All the infractions deals with unprofessional conduct, negligence of duty, recklessness, abuse of position, granting of unsecured loans, connivance with others to perpetuate fraud, and misappropriation. I read through paragraphs 3, 6, 7, 8 and 10 of the claimant’s reply to the statement of defence. Except for paragraph 10, which I agree with the defendant was not filed in response to any paragraph of the statement of defence and so introduced something new, contrary to the stipulations in Ughutevbe v. Shonowo & anor [2004] LPELR-3317(SC); [2004] 16 NWLR (Pt. 899) 300; [2004] 18 NSCQR 741 and Salihu v. Wasiu [2016] LPELR-26062(SC), I am satisfied that that paragraphs 3, 6, 7 and 8 of the claimant’s reply were properly responding to the averments in the defendant’s statement of defence. This being so, while paragraph 10 of the claimant’s reply is hereby discountenanced, paragraphs 3, 6, 7 and 8 are not and so will be used as such in this judgment. I so find and hold.
44. There is the issue of the admissibility of some of the exhibits tendered. I indicated earlier that the Court noted that Exhibit C9 is not dated and does not indicate the organization it relates to i.e. it has no nexus to the defendant. Exhibit C13 (Report of the Investigation Panel on Alleged N1,247,500.00 Fraud in Operations Department dated Monday, June 20, 2011) is an incomplete document and is not signed. And in Exhibit C15, Appendix 8 is missing. Exhibit D3 has no effective date of commencement on it except for the date when stamp duties was paid. And Exhibit D9 is an incomplete document – it has no date, no signature and it is not known who wrote it and the membership of the panel constituted to look into the issues addressed in the report. The defendant would later bring the signed copy of Exhibit D9, which was accepted by the Court and marked as Exhibit D9(a). However, the Court noted that Exhibit D9(a) is undated, the actual signatory is not disclosed and there is nothing on the face of it tying it with the defendant.
45. The claimant’s response is that Exhibit C9 was signed Mr Adekunle C. Ojo and that this was confirmed by DW under cross-examination. The claimant added that Exhibit C9 is a document containing investigation of alleged malpractices in loan accounts of certain characters/individuals like himself, Legal City Nigeria Ltd and Mr Luke Olorunfemi whose names have featured copiously in this suit such that it is not difficult to conclude that the document in issue has to do with the defendant company which is the common denominator among the several names mentioned. In all of his submissions, the claimant failed to address the critical question, which is the law as to undated documents. He cleverly avoided saying anything on it. The law is that an undated document is ordinarily invalid and unenforceable but parole evidence is admissible to show when the document was written and from what date when it was intended to operate. See Aremu v. Chukwu [2011] LPELR-3862(CA), Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047, Udo & ors v. Essien & ors [2014] LPELR-22684(CA) and See also Mr Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/122/2014, the judgment of which was delivered on 12th July 2016. There is no parole evidence before the Court as to the date of Exhibit C9. Accordingly, on the basis of these authorities, Exhibit C9 has no evidential value and so would be discountenanced in this judgment. I so find and hold.
46. On Exhibit C13 dated Monday, June 20, 2011 is the Report of the Investigation Panel on Alleged N1,247,500.00 Fraud in Operations Department). It is an incomplete document and is not signed. To the claimant, DW, a staff of the defendant company, recognized Exhibit C13 and confirmed that the last name on the list of the membership of the panel was his own; as such, the missing page which apparently is the last page of a stapled document and which carried the recommendation and signature of the Chairman of the panel apparently must have fallen off without being noticed by the claimant while compiling relevant evidence in support of his case. Once again, the claimant did not address the issue at hand, which is the law as to incomplete documents and unsigned documents.
47. In Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd unreported Suit No. NICN/LA/184/2016, the judgment of which was delivered on 9th October 2018, this Court held thus regarding the issue of the admissibility of an incomplete document:
Exhibit C3 is actually an incomplete document. The claimant did not tender it as an extract, which would have required certification as such, to warrant it being used as such in this judgment. See Oluwole Olatunji Kolade v. The Industrial Training Fund Governing Council & anor unreported Suit No. NICN/LA/60/2015, the judgment of which was delivered on 14th June 2016. As an incomplete document, the authenticity of Exhibit C3 is in issue. In a similar scenario, this Court in Oyewumi Oyetayo v. Zenith Bank [2012] 29 NLLR (Pt. 84) 370 held inadmissible and of no evidential value an incomplete exhibit on the ground that the fact of being an incomplete document rendered “suspect its authenticity and probative value”. Also, in Medical and Health Workers Union of Nigeria & ors v. Federal Ministry of Health unreported Suit No. NICN/ABJ/238/2012 the judgment of which was delivered on July 22, 2013, this Court rejected incomplete documents and so discountenanced them, holding that they have no evidential value. See also Overland Airways Ltd v. Captain Raymond Jam [2015] 62 NLLR (Pt. 219) 525 and Mr. Godwin Agbone v. Nulec Industries Ltd unreported Suit No. NICN/LA/427/2012, the judgment of which was delivered on 2nd February 2015. In like manner, Exhibit C3 is hereby discountenanced for purposes of this judgment as it has no evidential value.
See further Adesoji Adedokun & 3 orsPeninsula Asset Management & Investment Company Limited & anor unreported Suit No. NICN/LA/285/2013, the judgment of which was delivered on 16th July 2018.
48. And regarding unsigned documents, the law is that a document which ought to be signed, if not signed, is worthless. His Lordship Rhodes-Vivour, JCA (as he then was) in Fasehun & ors v. AG, Federation [2006] LPELR-5567(CA); [2006] 6 NWLR (Pt. 975) 141 and Her Ladyship Nimpar, JCA in Brewtech Nig. Ltd v. Akinnawo & anor [2016] LPELR-40094(CA) held that an unsigned document is worthless and void. Exhibit C13 is both an incomplete document as well as unsigned. On the basis of the case law authorities just cited, Exhibit C13 is worthless and so is countenanced for purposes of this judgment. I so find and hold.
49. Exhibit C15 dated 2nd August 2011 is a letter from the Director (Special Insured Institutions Department) of Nigeria Deposit Insurance Corporation (NDIC) to the Chairman of the defendant covering the NDIC routine examination report of the defendant as at 31st March 2011. The said report is then enclosed.. The report itself is signed by U. O. Mohammed (Principal Examiner) with “May, 2011” as the endorsed date; and has 13 Appendixes. However, Appendix 8 is missing from the report. None of the parties addressed this issue, and none made an issue of it. Since both the conveying letter and the report are signed, Exhibit C15 shall be used as such. The only outstanding issue being its cogency or weight, which would be determined in terms of the merit of the case. I so find and hold.
50. Exhibit D9(a) is the Report on the Malfeasances of the Suspended Management Staff. Exhibit D9(a) is undated (and no parole evidence was even led as to its date), the actual signatory is not disclosed and there is nothing on the face of it tying it with the defendant. The defendant conceded that the Exhibit D9(a) contained no date but stated that it was, however, signed by the consultant. The law as already stated is that an undated document is worthless. The attempt by the defendant to bring Exhibit D9(a) within the exceptions to section 128 of the Evidence Act 2011 cannot hold ground as being a nullity, nothing can save Exhibit D9(a). The further submission of the defendant that Exhibit D9(a) contains a letter dated April 21, 2010 by the Debt recovery Agency, Modern Business Operations Limited, addressed to the defendant, which showed the difficulties in the recovery of the loan granted with the connivance of some of defendant staff, to fictitious customers and fraudulent conversion of the defendants fund, and that this, therefore, distinguishes Exhibit D9(a) from Exhibits C9 and C13, equally holds no ground as the said letter of April 21, 2010 was not tendered in its own right but as part of an undated document that is thereby worthless. Exhibit D9(a) is worthless and so cannot give any breath of life to anything inside it. I so find and hold. Accordingly, Exhibit D9(a) is discountenanced for purposes of this judgment. I so hold.
51. The complaint of the claimant is that he was suspended by the defendant, which suspension is unlawful, null and void. He accordingly seeks reinstatement and payment of salary and other emoluments. Exhibit C3 is the letter of suspension. It is dated 27th September 2011; and indicates that the claimant was suspended without pay pending when investigation into the infractions (bordering on fraud and malpractices in the Bank) he is accused of is completed. For the claimant to succeed, he must discharge the burden of proving that his suspension was unnecessary, unreasonable, invalid and hence unlawful. See Mr Usanga Eyo Brian v. Polaris Bank Limited unreported Suit No. NICN/LA/412/2014, the judgment of which was delivered on 20th March 2019 especially paragraphs 29 and 30. It is to prove the unlawfulness of his suspension that the claimant relied on Exhibit C8, the document he termed the staff handbook that regulates his terms and conditions of employment. In fact, relief (i) as claimed by the claimant is specifically based on Exhibit C8. At the risk of repetition, relief (i) is for:
A declaration that the letter of “suspension from work without pay” dated 27/9/2011 signed by one Stephen Aladesawe – Managing Consultant is contrary to paragraph 5(2)(c) of the LASU MICRO FINANCE BANK LIMITED STAFF HANDBOOK of January, 2007 which guided the code of Ethics and Conditions of Employment of Staff of the Defendant Bank as stated in both the letter of offer and Handbook’s introduction and opening paragraph, and is therefore null, void and of no effect
52. Exhibit C8 is titled, “LASU Micro Finance Bank Limited Staff Hand Book Jan. 2007”. On its front page in handwriting are the words, “Draft & Corrected”. Though it is paragraphed, the paragraphing is not exactly coherent as paragraph numbering is repeated although headings of the paragraph numbers differ. Exhibit C8 is not paged. The fact of Exhibit C8 being a draft is evidenced in the body where corrections are made in handwriting, additions are made in handwriting, deletion is made with stroke of the handwriting, and queries are raised in handwriting. This is the document that the claimant states governs his employment relationship with the defendant. To the claimant, because Exhibit C8 states that suspension is to be by the Human Resources Department, the fact that it was a Managing Consultant that signed his suspension letter must mean that the suspension is null and void. Incidentally, even the provision on suspension that the claimant relied on has correction made in handwriting. I note here that Exhibit C11 dated 27/9/2011 is a memo from the claimant to the Managing Consultant and deals with handover notice and cases of pending activities. Now, the fact of Exhibit C8 being a draft is certainly not in doubt. Can a draft document create entitlements in labour relations? I do not think so. In Mr Usanga Eyo Brian v. Polaris Bank Limited unreported Suit No. NICN/LA/412/2014, the judgment of which was delivered on 20th March 2019, though not directly dealing with draft documents, this Court held that: “…submitting a bill for onward transmission to management for approval cannot be read to mean the approval”. It is inconceivable that a document described as draft would be the basis of any claim as the claimant seems to be doing with Exhibit C8. The claimant based the whole structure of his claim on Exhibit C8. I find and hold that Exhibit C8 is a draft document and so cannot create any entitlements that the claimant in this case can rely on. This being so, the claimant cannot be said to have proved his case since the basis of the unlawfulness of his suspension is itself faulty. An employer has the right to suspend its employee. See Bernard Ojeifo Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1 SC.
53. Like I indicated earlier, Exhibit C3 dated 27th September 2011 suspended the claimant pending the completion of investigation into the infractions he was accused of; and by Exhibit C11 dated same 27th September 2011, the claimant handed over to the Managing Consultant. It is not clear which between Exhibits C3 and C11 came first. The claimant argued that till date this investigation is yet to be concluded. When Exhibit C3 suspended the claimant, the claimant wrote Exhibit C4 dated 15th November 2011 to the Director, Other Financial Institutions Department of Central Bank of Nigeria (CBN) complaining about unfair treatment and abuse of corporate governance by the Board of the defendant. He concluded Exhibit C4 by urging that the defendant’s activities be investigated. There is nothing placed before the Court to show the outcome of the claimant’s complaint as per Exhibit C4. So when the claimant’s solicitor complained about the suspension to the defendant vide Exhibit C7 dated 14th February 2014, which also threatened legal action, the defendant replied vide Exhibit C18 dated 7th March 2014 that investigation was still ongoing. The claimant argues that this ongoing investigation took too long and so should not be countenanced by the Court. The defendant’s reaction is that it is not since the claimant reported it to CBN and did not await the outcome before coming to Court on 18th March 2014 with the instant suit.
54. Ordinarily, this Court frowns on long and prolonged disciplinary processes. In Mr Eluyoye Joseph Oyewole v. Lagos State Government & anor unreported Suit No. NICN/LA/288/2013, the judgment of which was delivered on 20th March 2019, this is what this Court said in paragraph 49:
A key principle in industrial relations law and practice is that the disciplinary process must not run slowly and sluggishly, or be unnecessarily prolonged; for otherwise, the employer stand the risk of an adverse verdict. From this principle, two rules are evident: one, the right to suspend an employee available to an employer is not a right that inures in perpetuity or eternity. And two, where there is an infraction, an employer who allows the disciplinary process to run very slowly and sluggishly stands the risk of being read to have condoned the said infraction.
55. But can it be said in the circumstances of this case that the prolonged suspension of the claimant was the doing of the defendant? I do not think so. It was the claimant who wrote Exhibit C4; and he placed nothing before the Court to show its outcome. In Exhibit C4, the claimant urged the CBN to investigate the defendant’s activities. Until that is done, I do not know how the claimant expects the defendant to conclude the investigation of the matters that are said to have led to his suspension since it is the same matters that he urged the CBN to investigate. The claimant only has himself to blame here. Sylvanus Eze v. University of Jos [2012] LPELR-20072(CA) and Bamigboye v. University of Ilorin & anor (1999) 10 NWLR (Pt. 622) at 290 acknowledged that the period of suspension is extendable by an employer. It is always in the interest of the employee to allow the disciplinary process to run its course. In writing Exhibit C4, the claimant sought to preempt or influence the disciplinary process. He has to live with the consequences.
56. A look at the reliefs of the claimant will show that they are hinged on the success or otherwise of his claim as to his suspension. It is if his case as to the suspension succeeds that reliefs (ii), (iii) and (iv) can be considered. I held earlier that Exhibit C8 is a draft and so cannot create entitlements; and as such the claimant did not prove the unlawfulness of his suspension as to hold the defendant liable. Exhibit C3 suspended the claimant without pay. There is no valid conditions of service against which the Court can gauge whether the suspension without pay is lawful or not. There is thus no basis upon which the claim for reinstatement and the monetary claims as per reliefs (ii), (iii) and (iv) can be determined. As it is, therefore, the claimant cannot succeed in his claims against the defendant. His case accordingly fails and so is hereby dismissed.
57. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
