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National Industrial Court

MR. DANIEL LIVINGSTONE -VS- PEOPLEPLUS MANAGEMENT

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 28TH FEBRUARY, 2019                  SUIT NO: NICN/CA/41/2012

BETWEEN:

  1. DANIEL LIVINGSTONE                                                    CLAIMANT

 

AND

 

  1. PEOPLEPLUS MANAGEMENT SERVICES LTD
  2. ZENITH BANK PLC                                                        DEFENDANTS

 

REPRESENTATION:

 

  1. Iganibo-Beresibo Esq. for the Claimant
  2. S. Essien Esq. for the Defendants

 

JUDGMENT

 

The Claimant commenced this suit against the Defendant by way of Complaint and Statement of Facts dated and filed on 8th June, 2012. The Claimant’s originating processes were however amended vide Amended Statement of Claim/Facts filed on 5th November, 2015, wherein the Claimant claims the following reliefs against the Defendants:

  1. A declaration that the indefinite suspension/dismissal slammed against the Claimant is wrongful, illegal, null and void and in the violation of the Claimant’s right to fair hearing.

 

  1. A declaration that by choosing to suspend Claimant’s employment or that choosing to suspend him from duty under disciplinary procedure alien to Claimant, the Defendants meant and or is (sic) understood to have meant that:

 

 

  1. The offence of which the Claimant was found guilty of, if at all, in the opinion of 2nd Defendant’s disciplinary panel did not warrant indefinite suspension, dismissal/termination of employment if Claimant was 2nd Defendant’s employee. That the opinion in the circumstance was suspension without pay of the Claimant for a few days or a written warning, but since Claimant is not 2nd Defendant’s employee is wrongful, illegal, null and void.

 

  1. A declaration that the continued suspension of the Claimant from work for over three years and without his knowledge of parties’ “Condition of Service” is wrong, illegal and amount to a breach of contract of employment.

 

  1. An order directing the Defendants to call back Claimant to work; or

 

ALTERNATIVELY

 

  1. An order directing the Defendants to pay up all the Claimant’s entitlement, salaries, allowances and promotion that may due him starting from the date of his suspension till the filing of this case put at the sum of N4,144,372.00 (Four Million, One Hundred and Forty Four Thousand , Three Hundred and Seventy Two Naira) only .

 

  1. The sum of Five Million Naira (N5, 000, 000.00) only to Claimant for breach of contract of employment.

Upon service of the Originating Processes on the Defendants, they filed Memorandum of Appearance, Statement of Defence, List of Witness(es), Witness Statement on Oath and List of Documents all dated 2nd August, 2012 and filed on the 3rd of August, 2012, but deemed by order of court on 1st November, 2012. The Claimant filed a Reply to the Statement of Defence on the 1st of November, 2012.

It is however pertinent to note that, with the leave of court, the Defendants filed an Amended Statement of Defence/Counter-Claim dated 28th February, 2013 and filed on 1st March, 2013. The Claimant in further response, filed a Reply/Defence to Counter-Claim dated 22nd October, 2015 and filed on 5th November, 2015.

The matter thereafter proceeded to trial wherein the Claimant testified for himself as CW, adopted his witness deposition on oath made on 5th of November, 2015, as well as the Further deposition on oath made on 12th March, 2018, and tendered a total of seven (7) documents which were admitted and marked as exhibits CW1, CW2, CW3, CW4, CW5, CW6, and CW7. The witness was cross-examined by the defence counsel after which he was re-examined by his own counsel.

The Claimant then closed his case on the 25th of April, 2018, and an opportunity was given to the Defendants to open their Defence.

The Defendants on the other hand called one witness Mr. Salako Jide who testified as DW. He adopted his Witness Statement on Oath made on 1st March, 2013, and tendered a total of two (2) documents which were admitted and marked as Exhibits DW1 and DW2. The witness was then cross-examined by the learned Claimant’s counsel and thereafter re-examined by the learned Defendants’ counsel. The Defendants closed their case on 25th April, 2018.

At the close of the defendants’ case, parties were ordered to file their Final Written Addresses, and the case was adjourned for adoption of Final Written Addresses.

On the 13th of December, 2018, parties adopted their Final Written Addresses respectively. The Defendant’s Final Written Address was dated 10th September, 2018 and filed on 19th September, 2018, but deemed to have been properly filed and served on the 8th of October, 2018. The Claimant’s Final Written Address was dated 16th November, 2018, and filed on 19th November, 2018, but deemed as properly filed and served on 22nd of November, 2018. The Defendant filed a Rejoinder/Reply on Point of Law dated 22nd November, 2018, and filed on 27th November, 2018.

With the adoption of the parties’ Final Written Addresses, the suit was adjourned for judgment.

THE CASE OF THE CLAIMANT:

It is the case of the Claimant that, he was employed by the 1st Defendant as a Security Officer vide letter dated 17th October, 2007, and posted to the 2nd Defendant’s Branch at Braithwaite Memorial Hospital (BMH) as a security officer attached to the branch.

That due to the Claimant’s diligence, commitment and loyalty in the discharge of his duties to the Defendants, he did not receive any query or reprimand from the 1st Defendant throughout the period of his service.

According to the Claimant, while at his duty post on 2nd January, 2009, he had an altercation with one of his co-workers Mr. Utomudo Aforke Patrick and the matter was reported to the Port Harcourt Head Office by one Mr. Obinna (the branch cash officer). They were subsequently asked to report at the Port Harcourt Head Office of the 2nd Defendant which they did and after hearing their oral representations, a panel was set up in February, 2009, which equally took oral representations from both the Claimant and his co-worker. That subsequently they appeared before the 2nd Defendant’s Head of Personnel (H.O.P) 2 one Mr. Dumbiri, and also the Head of Personnel (H.O.P) 1 Mr. Kunle Orukpor who after hearing from them referred the matter to the Disciplinary Committee of the 2nd Defendant headed by one Mr. Chimeze, the manager of Orije Branch of the 2nd Defendant in Port Harcourt.

That they appeared before the 2nd Defendant’s Disciplinary Panel, and after hearing from them, they were given letters of suspension from duty without pay dated 31st March, 2009. He was accordingly directed to hand over all the property of the 1st Defendant in his possession to one Mr. George Fubara, the 1st Defendant’s Head of Security, and he handed over his official Identity Card, a pair of shoes and his security uniform on the 1st of April, 2009.

The Claimant further averred that, after their suspension from duty and sometimes in the month of March, 2010, the 2nd Defendant paid him his housing allowance for the year 2010 in the sum of N150, 000 (One Hundred and Fifty Thousand Naira) which he withdrew from the 2nd Defendant’s branch at Oginigba branch.

The Claimant’s grouse mainly is that, being an employee of the 1st Defendant, it is the 1st Defendant that should have put in place any disciplinary mechanism to discipline him for any alleged act of gross misconduct, and not the 2nd Defendant as was done in this case.

 

 

 

DEFENDANTS’ CASE:

According the Defendants, the Claimant who was on probation was known for violent confrontation at the place of work, and that one of such violent behaviors was when he beat up his colleague and inflicted harm on him within the 2nd Defendant’s premises. That after he appeared before a Disciplinary Committee which found him liable, the 2nd Defendant not being satisfied with the Claimant’s conduct, released/sent him back to the 1st Defendant which subsequently placed him on indefinite suspension without pay vide memo dated 31st March, 2009, due to non availability of customers who require the services of the Claimant.

The Defendants aver further that, housing allowance paid upfront to the Claimant was paid in error by the 1st Defendant, and the Claimant who should have known that he was not entitled to same dishonestly withdrew the money. The Defendants plead the following as particulars of fraud:

  1. The Claimant’s service for the 2nd Defendant was no longer needed and had been withdrawn.
  2. The Claimant knew and or ought to have known that the payment of housing allowance was done in error by the 1st Defendant.

iii.               The Claimant withdrew and embezzled the money.

  1. The Claimant defrauded the Defendants and failed, refused or neglected to refund the money despite all entreaties.
  2. The Claimant knew he was on indefinite suspension without pay and was not working for any of the Defendants.
  3. The 1st Defendant’s Housing allowance was only for qualified serving staff.

It is the further case of the Defendants that, the Claimant who had earlier instituted similar case in Suit No. NIC/LA/10/2011 against the Defendants which was struck out is estopped from instituting this suit as the suit constitutes an abuse of court process.

 

 

 

CLAIMANT’S REPLY TO STATEMENT OF DEFENCE.

It is pleaded by the Claimant in the Reply to Statement of Defence that, the letter of offer of employment issued to him by the 1st Defendant does not contain conditions of service, and that he was not on probation because he had worked for about a year and five months as at when he was placed on indefinite suspension without pay. That contrary to the Defendants’ assertion, he was not quarrelsome and what transpired between him and his colleague was that he merely held the shirt of his colleague by the collar and his colleague did same to him, and they stopped at that point without any third party intervention.

That the disciplinary panel that investigated him was constituted and manned by staff of the 2nd Defendant while he was an employee of the 1st Defendant. It is further averred that, it is the duty of his employer to provide him work to do, hence his indefinite suspension from work is illegal because till date his salary is running and is being withdrawn and misappropriated by those staff of the Defendants who masterminded his indefinite suspension from office.

According to the Claimant, he is not fraudulent as his housing allowance for 2010 which was paid to him was not paid in error as alleged by the Defendants because the 1st Defendant knew that his salary was still running.

On the institution of an earlier suit, the Claimant states that, since the said suit was withdrawn and struck out upon an application by the Claimant, it can be re-filed.

1ST DEFENDANT’S COUNTER-CLAIM.

According to the Defendants, since February, 2009, the Claimant has not rendered any service to the 1st Defendant but when the sum of N150, 000.00 (One Hundred and Fifty Thousand Naira) only was erroneously paid into his account as housing allowance, he immediately withdrew same and has refused, failed and neglected to refund same despite all entreaties. That the Defendants have therefore suffered great hardship and deprivation of the money withdrawn by the Claimant.

The 1st Defendant therefore counter-claims against the Claimant as follows:

 

  1. An order directing the Claimant to pay back or refund the sum of N150, 000.00 (0ne Hundred and Fifty Thousand Naira) only wrongly and mistakenly posted into the Claimant’s account as Housing Allowance for the year 2010, which period the Claimant was no longer in the employ of or rendering service to any of the Defendants at all.

 

  1. An order awarding damages of N5, 000, 000.00 (Five Million Naira) against the Claimant for breach of utmost good faith.

 

iii.               And for such further other order(s) as this Honourable Court may deem fit to make in the special circumstances of this case.  

CLAIMANT’S DEFENCE TO COUNTER-CLAIM.

The Claimant pleads in defence to the Counter-Claim that, since the 1st Defendant knew that the Claimant was entitled to the sum of N150, 000.00 (One Hundred and Fifty Thousand Naira) paid him as housing allowance, the Defendants did not suffer any hardship or deprivation of the money withdrawn by the Claimant.

That since his salaries and other entitlements are still running but being misappropriated by a few staff of the Defendants, the said sum of N150, 000.00 housing allowance for the year 2010 was not posted to his account in error/mistake. That the Defendants are not entitled to the counter-claim because same is unmeritorious and vexatious, and should be dismissed.

DEFENDANTS’ SUBMISSIONS.

The Defendant distilled three (3) issues for determination, to wit:

  1. Whether, having regards to the pleadings and evidence led by the Claimant, there is any reasonable cause of action disclosed against the 2nd Defendant to warrant or justify her joinder in this case.

 

  1. Whether from the totality of facts and evidence adduced, the Claimant has successfully proved his claims in order to be entitled to the reliefs sought.

 

  1. Whether the 2nd Defendant is entitled to its reliefs as contained in her counter-claim.

On issue one (1), it is submitted that the present suit does not disclose reasonable cause of action against the 2nd Defendant to justify her joinder as a party in this suit. That a cause of action is the factual circumstances giving rise to or upon which an enforceable claim is anchored, which includes the wrongful act complained against and the consequent damage flowing from same. See MILAD. Benue State & Ors V. Captain Clement Abayilo (2001) FWLR (Pt. 45) 602 at 615; Julius Berger Nig Plc V. Omogui (2001) FWLR (Pt. 64) 305 at 317; Chief Olori Edjerode & Ors V. Chief Onwovwiogor Ikine & 2 Ors (2001) 12 SC; Idachaba V. Ilona (2008) All FWLR (Pt. 425) 1747 at 1763 and Ogusanya V. Dada (1992) 4 SCNJ 162.

That since the Claimant was employed by the 1st Defendant who equally suspended the claimant indefinitely from office vide exhibit CW5, and there is no relief against the 2nd Defendant, the joinder of the 2nd Defendant to this suit is in bad faith, unwarranted and the court should strike out the name of the 2nd Defendant from this suit with cost of N500, 000.00 (Five Hundred Thousand Naira) only against the Claimant.

On issue two (2) it is argued that, since the reliefs the Claimant is seeking in this suit are declaratory in nature which require the court making legal pronouncement on legal position of proven state of affairs, the Claimant must place before the court such credible facts or proven factual state of affairs for the court’s consideration. And that in such circumstance, the Claimant is supposed to succeed on the strength of his case and not on any weakness or admission of the Defendant. See Fawehinmi V. IGP (2000) FWLR (Pt. 12) 2015 at 2025; Dr. Oladipo Maja V. Mrs. Costa Samoeouris (2007) 7 NWLR (Pt. 765) 78 at 100-101; GE International Operations Nig Ltd V. Q Oil and Gas Services Ltd (2016) All FWLR (Pt. 838) 842 at 864; Enekwe V. I. M.. B. Nig Ltd (2007) All FWLR (Pt. 349) 1053; CBN V. Amao & 2 Ors. (2010) 5-7 SC (Pt. 1) 1 at 31; Friday V. The Governor of Ondo State & Another (2013) All FWLR (Pt. 706) 507 at 539 and Chukwumah V. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512 at 553.

According to the learned Defendants’ counsel, the Claimant was an unconfirmed employee of the 1st Defendant and that being so, no procedure is expected to be followed, as the Defendants have the right to hire and fire because such a probationary employee is subject to the whims of the employer since the probation itself is a trial/test period of which the result lies with the employer to determine. See Ihezukwu V. University of Jos (1990) 4 NWLR (Pt. 146) 598 at 612; Baba V. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388 at 414; Steyer (Nig) Ltd V. Gadzama (1995) 7 NWLR (Pt. 407) 305 at 311, and NNPC V. Olagbaju & Ors (2006) All FWLR (Pt. 334) 1855 at 1873.

It is further submitted that, by exhibits CW1 and the evidence of DW1, the Claimant being on probation and known for violence while on secondment to the 2nd Defendant as a security man, the 2nd Defendant was right to have rejected and returned him to his employer (the 1st Defendant) who legally placed him on an indefinite suspension pending when his services would be required by any of the 1st Defendant’s clients. See Benue Cement Company Plc V. Ager (2010) 21 NLLR (Pt. 59) 256 at 273.

That the Claimant’s suspension does not in any way amount to violation of his right to fair hearing because he was given the opportunity to exculpate himself before the disciplinary panel set up by the 2nd Defendant. Also that, since the Claimant was only suspended and not dismissed from service, he is only being kept from performing his functions until he is either dismissed or reabsorbed if need be. See INEC V. Okoronkwo (2009) All FWLR (Pt. 488) 227 at 242; Boston Deep Sea Fishing and Ice Co. V. Ansell (1888) 39 CH.D 339, Amadume and Ano. V. Ibok & Co. (2006) All FWLR (Pt. 321) 1247 at 1259 and FUT, Yola V. Maiwuya (2013) All FWLR (Pt. 667) 753 at 765.

On the reliefs being sought in this suit, it is submitted that relief ‘c’ is not supported by any evidence or pleading as there is no Condition of Service produced before the court to show that same was breached by the Defendants. That relief ‘d’ for reinstatement is baseless as the court cannot order for reinstatement. With regard to the alternative claim for payment of arrears of salary/entitlements, it is argued that, an employee cannot earn salary/allowances for any month he did not render services to the employer. See Jirgbagh V. U.B.N. Plc (2000) FWLR (Pt. 26) 1790 at 1808-1809; L.U.T.H.&M.B. V. Adewole (1998) 5 NWLR (Pt. 550) 406 at 422; U.T.C. V. Nwokorudu (1993) 3 NWLR (Pt. 281) 295 at 299; N.I.T.E.L. V. Oshodi (1999) 8 NWLR (Pt. 616) 528 at 542 and Gateway Bank of Nigeria Plc V. Abosede (2005) 4 N.L.L.R. 289 at 332 and Olatunbosun V. NISER (1988) 3 NWLR (Pt. 80) 25.

On issue three (3) which relates to the Counter-Claim, it is submitted that, the housing allowance is specified in exhibit CW1 and is a loan usually paid upfront to the employee and recoverable from the monthly emolument or salaries. That since the Claimant was no longer rendering services to the Defendants, the said payment was made in error/mistake. See Obo V. Commissioner of Education Bendel State (2001) 2 NWLR (Pt. 698) 625 at 236 and Gateway Bank of Nig. Plc V. Abosede (supra).

It is finally argued that, the Claimant has failed to establish his case to entitle him to the reliefs being sought in this suit, and same should be dismissed in its entirety by the court and the court should grant the Counter-Claim.

CLAIMANT’S SUBMISSIONS

The Claimant crafted three (3) issues for the determination of the court, to wit:

  1. Whether the indefinite suspension cum dismissal of the Claimant by the 1st Defendant, relying on the findings of a disciplinary panel set up and completely manned by staff of the 2nd Defendant who was not the employer of the Claimant, amounts to a breach of the fundamental right to fair hearing of the Claimant.

 

  1. Whether the setting up of a disciplinary panel by the 2nd Defendant to investigate Claimant, who was not the employer of the Claimant amounts to a breach of Claimant’s fundamental right to fair hearing.

 

  1. Whether Claimant is entitled to his alternative reliefs, if a case of breach of his fundamental right to fair hearing is established against the Defendants.

While arguing issue one (1), learned counsel to the Claimant submits that, by exhibit CW1 and the Claimant’s testimony in this suit, the Claimant who was an employee of the 1st Defendant and not the 2nd Defendant would not have argued to the contrary if the 1st Defendant had followed due process in suspending him indefinitely because an employer has the right to bring to an end appointment of an employee for any reason or no reason at all so long as he acts within the terms of the employment. See Idoniboye-Obu V. NNPC (2003) 2 NWLR (Pt. 805) 589, and Garuba V. K.I.C. Ltd (2005) 5 NWLR (Pt. 917) 160 at 179.

That in the instant case, the Claimant was denied his right to fair hearing because, the panel that investigated the Claimant was set up by the 2nd Defendant who was not the Claimant’s employer, and upon submission of the 2nd Defendant’s report to the 1st Defendant, the 1st Defendant ought to have invited and heard from the Claimant before placing him on an indefinite suspension. See FUT, Yola V. Maiwuya (supra); Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 22; Kim V. State (1992) 4 NWLR (Pt. 233) 17; Savannah Bank (Nig) Plc V. Fakukun (2012) 1 NWLR (Pt. 749) 544; Ogunlade V. FMB (Nig) Ltd (2007) 2 NWLR (Pt. 1017) 16 at 28, and Yusuf V. U.B.N. Ltd (1996) 6 NWLR (Pt. 457) 632 at 644.

On the Defendants’ argument that the name of the 2nd Defendant should be struck out of the suit for non disclosure of reasonable cause of action, it is argued that by the averments and depositions in paragraphs 13, 14, 15, 19 and 26 of the Statement of Facts and paragraphs 13, 14, 15, 19 and 26 of the Claimant’s deposition on oath, which were admitted in paragraphs 5, 8 and 11 of the Statement of Defence/Counter-Claim and paragraphs 11 and 14 of the Defendants’ written deposition on oath, as well as exhibit DW1, the Claimant’s case has disclosed reasonable cause of action against the 2nd Defendant. See Egbue V. Aroko (1988) 2 NWLR 598 and Kasala V. Sokoto NA (1968) 1 All NLR 377 at 381.

Regarding Issue two (2), it is contended that, the 2nd Defendant who was not the Claimant’s employer set up a disciplinary panel that investigated the Claimant and even found him guilty of gross misconduct even where there is evidence before the court that the Claimant was under the control and supervision of his employer (the 1st Defendant), and no such authority was delegated to the 2nd Defendant by the 1st Defendant. That since this piece of evidence remains unchallenged, the court should accept and act on same. See Nze V. N.P.A. (1997) 11 NWLR (Pt. 528) 210 at 219, and Edet V. Chief of Air Staff (1994) 2 NWLR (Pt. 324) 41 at 63.

That since by exhibit CW1 the Claimant was employed for a probationary period of one year with effect from 17th October, 2007, and his indefinite suspension was with effect from 2nd of January, 2009, the Claimant was no longer under probation when he was suspended because he had served for a period of 17 – 18 months. See O.A.U. V. Onabanjo (1991) 5 NWLR (Pt. 193) 549 at 566.

That the indefinite suspension of the Claimant tantamount to dismissal or termination of appointment in view of the duration, and that while this suit is in court the Claimant was served with a letter of termination of appointment by the 1st Defendant. That despite reliefs a, b, and c being declaratory in nature, the court can still award them after being satisfied by the evidence adduced that the Claimant is entitled to them. See Rector, Kwarapoly V. Adefila (2007) 5 NWLR (Pt. 1056) 42; Ayanru V. Mandilas Ltd (2007) 10 NWLR (Pt. 1043) 463; SPDC (Nig) Ltd V. Emehuru (2007) 5 NWLR (Pt. 1027) 347 at 376; Okike V. The Legal Practitioner (supra); Adigun V. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678, and I.N.E.C. V. A.D.C. (2009) ALL FWLR (Pt. 490) 689.

Regarding issue three (3), the court is referred to the Claimant’s further deposition on oath filed on 12th March, 2018, and urged to compare same with the deposition on oath filed on 8th August, 2012, to ascertain whether the signature on both depositions is that of one and the same person. That the omission of introductory paragraphs in further deposition of 12th March, 2018 is as a result of human error which does not invalidate any affidavit in so far as the affidavit is sworn before a person authorized by law. See Udeagha V. Omegara (2010) 8 NWLR (Pt. 1204) 168 and   Nkeiruka V. Joseph (2009) 9 NWLR (Pt. 1135) 505. Section 113 Evidence Act and sections 12(2)(5) and 14 of National Industrial Court Act (NICA) 2006.

It is further argued that, if the court finds and holds that the Claimant’s right to fair hearing was breached by the Defendants, the resultant effect will be the granting of alternative relief ‘e’ because its success is hinged on the declaratory reliefs.

With regard to the Counter-Claim, it is further submitted that, since the payment was made by the 1st Defendant into the Claimant’s account, the 2nd Defendant lacks the locus to demand the refund of the money because the money does not belong to the 2nd Defendant. See P.V.C. Ltd V. Lawal (2005) 3 NWLR (Pt. 911) 121 at 141. That since the Claimant was only suspended from service, if he is eventually dismissed from service after the period of suspension, he is entitled to all the wages he would have earned during the period of suspension; and that the court should therefore grant the Claimant’s reliefs and dismiss the Counter-Claim. See Nigerian Produce Marketing Board V. Adewunmi (1972) II SC III, and LUTH & M.B. v. Adewole (1998) 5 NWLR (Pt. 550) 406 at 422.

DEFENDANTS’ REJOINDER ON POINT OF LAW:

It is the further submissions of the Defendants on the Claimant’s issues 2 and 3 that, the Claimant cannot set up in a written address a different case of termination/dismissal of appointment contrary to the pleadings and evidence of the parties because the case before the court is that of indefinite suspension. That a written address cannot take the place of evidence. See Adekanye V. Grand Services Ltd (2007) All FWLR (Pt. 387) 855; Adetoun Oladeji (Nig) Ltd V. Nigerian Breweries Plc (2007) All FWLR (Pt. 357) 837; Onewokae V. Onewokae (2007) All FWLR (Pt. 356); Charles V. Gudi (2007) All FWLR (Pt. 362) 1992; Nirchandani V. Pinheiro (2001) FWLR (Pt. 48) 1307, and Obasuyi V. Business Ventures Ltd (2000) FWLR (Pt. 10) 1722.

It is further argued that, since there is no law, practice or procedure that requires an employer to set up a panel to hear an employee before a disciplinary action of suspension is taken against the erring worker except as contained in the Term of Employment, the court should discountenance the Claimant’s submissions and dismiss the case with punitive cost.

COURT’S DECISION

Having carefully considered the pleadings, testimonies, exhibits and arguments/submissions of counsel for the parties, this case shall be determined on the basis of the three (3) Issues crafted by the Defendants for the determination of the court. The rationale for this is that, not only do these Issues cover the Claimant’s three (3) Issues, but also the 1st Defendant’s Counter-Claim which is not one of the Issues identified by the Claimant.

For the purpose of clarity, the three Issues (3) are reproduced below:

  1. Whether, having regards to the pleadings and evidence led by the Claimant, there is any reasonable cause of action disclosed against the 2nd Defendant to warrant or justify her joinder in this case.

 

  1. Whether from the totality of facts and evidence adduced, the Claimant has successfully proved his claims in order to be entitled to the reliefs sought.

 

  1. Whether the 2nd Defendant is entitled to its reliefs as contained in her counter-claim.

The point being made by the Defendants on issue one (1) is that, since the Claimant was employed by the 1st Defendant and only redeployed to the 2nd Defendant, and that he was suspended indefinitely by the 1st Defendant, the instant case does not disclose any reasonable cause of action against the 2nd Defendant, and the court is urged to strike out the 2nd Defendant’s name from the suit.

I have looked at the submissions of the learned Defendants’ counsel on the meaning of a cause of action being every fact which is material to be proved by Claimant to entitle him to judgment, and that in determining whether or not a case discloses reasonable cause of action, the court is enjoined not to look beyond the averments in the Claimant’s pleadings. These submissions of learned counsel are correct and in line with the law. See Bessoy Limited V. Honey Legon (Nig) Limited and Another (2008) LPELR-8329(CA), and Chartered Brains Limited and Another V. Intercity Bank Plc (2009) 15 NWLR (Pt. 1165) 445.

Having carefully examined paragraphs 3, 8, 9, 10, 11, 12, 13, 14, 15, 17, 19 and 27 of the Amended Statement of Facts, it would seem that the Claimant is alleging that the facts and circumstances leading to the institution of this suit happened when he was working in the 2nd Defendant’s branch at Braithwaite Memorial Hospital (BMH), and that it was the 2nd Defendant that investigated the allegation against the him. Exhibit DW2 relates to the outcome of the 2nd Defendant’s investigation of the allegation against the Claimant which was forwarded to the 1st Defendant vide exhibit DW1. Since the Claimant was not an employee of the 2nd Defendant, I think the 2nd Defendant had done all it could do in the circumstance by investigating the alleged act of misconduct and forwarding its report to the 1st Defendant for its necessary action. The letter of indefinite suspension issued to the Claimant (exhibit CW5) was issued by the 1st Defendant being the Claimant’s employer.

The Defendants’ sole witness (DW) Salako Jide a staff of the 1st Defendant told this court during cross-examination that, after the investigation of the Claimant and his colleague by the 2nd Defendant, the Claimant was rejected by the 2nd Defendant upon which he was withdrawn from the 2nd Defendant’s premises.

It is the law that a plaintiff who brings a Defendant to court must show in his Pleadings not just the wrongful acts of the Defendant but also the consequential damages suffered as a result of the said wrongful acts. In other words, cause of action must exist before an intending litigant can commence any suit before a court of law.

See Attorney General of Bayelsa State V. Attorney General of Rivers State (2006) LPELR – 615 (SC), and Samuel Osigwe V. PSPLS Management Consortium Ltd and Ors. (2009) 3 NWLR (Part 1128) 378.

 

I therefore agree with the learned Defendants’ counsel that the instant case discloses no reasonable cause of action against the 2nd Defendant.

I therefore hold that the case of the Claimant has not disclosed any reasonable cause of action against the 2nd Defendant who had done all it could do in the circumstance by investigating the allegation and forwarding its outcome to the 1st Defendant being the Claimant’s employer.

Consequently, the name of the 2nd Defendant is hereby struck out of this suit for want of reasonable cause of action. Issue one (1) is therefore resolved in favour of the Defendants.

On Issue two (2), may I from the onset resolve the argument on whether or not the Claimant was still on probation when he was suspended from the office. While the Defendants have taken the position that since the Claimant was still on probation when he was suspended and no procedure was to be followed in disciplining him, the Claimant’s stance is that he ought to be considered as a confirmed staff placing reliance on the case of O.A.U V. Onabanjo(supra).

The word ‘probation’ was aptly defined by the appellate court in the case of Al-Bishak V. National Productivity Centre and Another (2015) LPELR-24659(CA) as follows: “the initial period of employment during which a new, transferred, or promoted employee must prove or show that he is capable of performing the required duties of the job or position before he will be considered as permanently employed in such position.”

 

The law is as rightly argued by the learned Defendants’ counsel that, while in the case of a worker under probation, no procedure needs be followed once there is the satisfaction that there is a good reason or cause for termination, in the case of a confirmed staff due process must be followed before the termination of the appointment.

The rationale for this of course is that an employee under probation is still being watched by the employer; hence such an employee is ordinarily expected to assure or convince the employer that he/she is a fit and proper person to be considered for placement on permanent appointment.

The Claimant’s letter of employment dated 17th October, 2007 (exhibit CW1) provides for his probationary period as follows:

“This appointment is subject to confirmation, based upon satisfactory performance of your duties, after a period of one year. After confirmation of your employment, you may resign your appointment with the company subject to giving the company one month notice or paying the company one month salary in lieu of notice.”

The Claimant’s probationary period was for one year from 17th October, 2007. By exhibit CW5, the Claimant was placed on an indefinite suspension with effect from 1st April, 2009. It is therefore clear that as at when the Claimant was suspended he had worked with the Defendant way beyond the probationary period of one year as provided for in the contract between the Claimant and the 1st Defendant.

After the one (1) probationary period, the 1st Defendant had the discretion to have either relieved the Claimant of his appointment on the basis of not being satisfied with his performance, or to formally confirm his appointment, but the 1st Defendant did neither of these options. An employee is not expected to be under probation ad infinitum. Where an employee has served the probationary period and the employer retains him in its employment and continues to pay him his salaries (as the situation in this case), such an employee will be deemed to have been confirmed and placed on permanent appointment. This is what is now termed in labour law as “the principle of deemed confirmation of appointment.” See Dr. Ajewunmi Bili Raji V. Obafemi Awolowo  University (2014) LPELR-22088(CA).

The 1st Defendant having retained the Claimant and continued to pay him salaries after the probationary period, the Claimant is deemed to have been confirmed by the 1st Defendant. I so find and hold.

 

The Claimant’s case before the court is simply that since he was employed by the 1st Defendant, the indefinite suspension from duty slammed on him after the 2nd Defendant’s investigation of the allegation against him is unconstitutional and illegal; hence the court should grant the reliefs being sought in this suit.

The allegation against the Claimant which eventually led to his indefinite suspension was that, while on duty in the 2nd Defendant’s Branch at Braithwaite Memorial Hospital (BMH), he fought with one of his colleagues known as Mr. Patrick Utomudo of which both of them appeared before the 2nd Defendant’s Disciplinary Panel and subsequently placed on an indefinite suspension by the 1st Defendant.

DW (Salako Jide) narrated to the court how the Claimant as a security man deployed to the 2nd Defendant’s Branch at Braithwaite Memorial Hospital beat up his colleague in the 2nd Defendant’s counting room and inflicted bodily harm on him. The Claimant who seemed to admit that he had an altercation with his co-worker however downplayed the severity of the incidence by stating that what happened between him and his colleague (Patrick Utomudo) was a mere misunderstanding which did not lead to shedding of blood.

I must pause here and state that just as employers owe their employees some obligations, employees also owe their employers some duties one of which is to ensure that there is peace and harmony at the workplace. The Claimant who was a security man working in an important but risk-prone organization as the 2nd Defendant should not have under whatever provocation engage in fisticuffs at the workplace. His conduct is to say the least reprehensible and I do not think any responsible organization will condone such shameful and disgraceful act from its employees.

What spurred this suit is exhibit CW5 which is the letter of indefinite suspension without pay. To better appreciate the contents of the said letter same is reproduced below for clarity:

From: Peopleplus Management Services Limited

To: Livingstone Daniel (20071033) – Security, Trans Amadi

Date: Tuesday, March 31, 2009

SUBJECT: INDEFINITE SUSPENSION WITHOUT PAY

We have received reports that you physically assaulted a fellow colleague in the bank premises while on duty.

Management is very displeased with this report as such act of gross misconduct cannot be tolerated in any corporate organization.

Consequently, you are hereby placed on indefinite suspension without pay with effect from Wednesday, April 01, 2009.

You are required to handover the bank’s property in your possession to the Head of Operations of your branch.

The law is that suspension from duty which may be for a specified time or indefinite is a temporary cessation of contract of employment pending the outcome of employer’s investigation into the allegation of misconduct against an employee. During the suspension period, all the rights and privileges of the employee under the contract of employment will cease until the worker is absolved of the allegation against him or her. See Mr. Osamata Macaulay Adekunle V. United Bank for Africa Plc (2016) LPELR-41124(CA) and University of Calabar Teaching Hospital and Another V. Juliet Koko Bassey (2008) LPELR-8553(CA).

Exhibit CW5 was issued to the Claimant on 31st March, 2009, and over two (2) years after that, the 1st Defendant did not take any action with a view to investigating the allegation against the Claimant. Even when the Claimant’s solicitors wrote exhibit CW3 dated 1st July, 2011 pleading with the 1st Defendant to reconsider its decision on the indefinite suspension of the Claimant, the 1st Defendant still took no action in looking into the issue to enable the Claimant know his fate. In fact, the Defendants’ witness (DW) informed the court during cross-examination that the 1st Defendant did not set up any panel to investigate the Claimant.

It is therefore clear from the evidence on record that the 1st Defendant is no more desirous of continuing with the services of the Claimant. The Claimant who is urging the court to declare as illegal wrongful, null and void the indefinite suspension/dismissal would seem to have come to terms with the fact that the 1st Defendant is no longer willing and desirous of continuing with his services. Having failed to reabsorb the Claimant despite exhibit CW3, I hold that the 1st Defendant has repudiated the contract between it and the Claimant. See S. O. Ilodibia V. Nigerian Cement Company Limited (1997) LPELR-1494(SC).

The pertinent question to ask at this point is, on what authority did the 1st Defendant issue the letter of indefinite suspension to the Claimant (exhibit CW5)? The Claimant has informed the court that he was not given any Staff Conditions of service despite the letter from his Solicitors requesting for a copy of the 1st Defendant’s Staff Conditions of Service.

During cross-examination, DW told the court that the 1st Defendant’s Staff Conditions of Service are as spelt out in the offer letter and that the 1st Defendant does not have any other Conditions of Service.

I have therefore looked at the Offer of employment (exhibit CW1) being the only document regulating the contract between the Claimant and the 1st Defendant and there is no provision for the suspension of the claimant not to talk of an indefinite suspension. The only provisions relating to the termination of the contract is where it is discovered that the claimant gave false information to the 1st Defendant, or that his academic papers were forged, or that he possesses higher qualifications other than those disclosed during the interview; and that the claimant could resign his appointment after confirmation by giving one month notice or paying the 1st Defendant one month salary in lieu of notice.

The contract between the Claimant and the 1st Defendant being one of master and servant (without statutory flavor), it must be made clear that while at common law the employer can terminate the contract with or without giving any reason, the termination must however be in line with the terms of the contract voluntarily entered into by the parties. In this case however, I do not think the 1st Defendant having not provided for circumstances under which an employee can be suspended acted within the terms of the agreement between the parties. The Contract (exhibit CW1) does not provide for suspension whether for a definite period or indefinitely. The 1st Defendant could have relieved the Claimant of his employment out-rightly but to place him on indefinite suspension and not attend to his case years after the suspension despite plea from his solicitors to my mind is unjust and condemnable. In the case of Festus Olafimihan V. Nova Lay-Tech Nigeria Limited (1998) 4 N.W.L.R. (Part 547) 608 at 620 paragraphs B – F, the appellate court had this to say on the need for parties to comply with terms of employment contract before termination:

“In other words with effect from 15/6/1994 when the appellant was served with Exhibit 4, his employment with the respondent had been effectively terminated although without the requisite required notice of one month in lieu of which the appellant is entitled to damages. This is because the position of the law is that except in employment governed by statute wherein the procedures for employment and discipline (including dismissal) of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in the way and manner prescribed by the statute and any other manner of termination inconsistent with the relevant statute is null and void and of no effect.

See Olaniyan V. University of Lagos (1985) 2 NWLR (Pt. 9) 599 and Sapara V. University College Hospital Management Board (1988) 4 NWLR (Pt. 86) 58. In other cases governed only by agreement of the parties and not by statute as in the present case, removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on them. Any other form of removal not in accordance with the term of agreement connotes only wrongful termination or wrongful dismissal which cannot be declared null and void. The only remedy available to an employee removed contrary to the terms of his employment is a claim for damages for the wrongful termination or wrongful dismissal. This is based on the notion that no servant can be imposed by the court on an unwilling master or employer even where the employer’s behavior towards the employee is wrongful. Thus for the wrongful act of the employer, he is only liable to his wronged employee in damages and nothing more. See Union Beverages Ltd V. Owolabi (1988) 1 NWLR (Pt. 68) 128 and Union Bank of Nigeria Ltd V. Ogboh (1995) 2 NWLR (Pt. 380) 647 at 664.”

On the reliefs being sought by the Claimant in this suit, it is noted that relief ‘a’ is for a declaration that the indefinite suspension/dismissal of the Claimant is wrongful, illegal, null and void. This relief runs contrary to the law because, except in employments governed by statutes, a master/servant relationship cannot be declared null and void even where the termination is held to be wrongful. See Philip Terwase Nongu V. Local Government Service Commission and Another (2011) LPELR-4851(CA). Relief ‘a’ is therefore not grantable and same is hereby refused.

 

Relief ‘b’ seems to be against the 2nd Defendant whose name has been struck out of the suit. It is also not grantable since it also asks the court to declare as null and void the Claimant’s indefinite suspension. This relief is refused.

 

Relief ‘c’ which is for a declaration that the continued suspension of the claimant from work for over three years and without his knowledge of parties’ Condition of Service is wrong, illegal and amounts to a breach of contract of employment is hereby granted.

 

Relief ‘d’ would seem to be for an order of specific performance. This relief cannot be granted in view of the legal position that a willing employee cannot be foisted on an unwilling employer. See Gabriel Ativie V. Kabel Metal Nigeria Limited (2016) 9 ACELR 1 at page 10 – 11. This relief is therefore refused.

 

The alternative relief ‘e’ is for the payment of the sum of Four Million, One Hundred and Forty – Four Thousand, Three Hundred and Seventy Two Naira (N4, 144, 372.00) to the Claimant as his salaries, allowances and promotion that may due him starting from the date of his suspension till the filing of the suit. This relief is neither supported by law nor evidence on record. The Claimant, who informed the court during cross-examination that he stopped working for the 1st Defendant upon receipt of the letter of indefinite suspension on the 31st of March, 2009 cannot claim emoluments for period he did not work. See Solomon Jude V. Nigeria Bottling Co. Plc (2016) 67 N.L.L.R. (Part 241) 609 at 638; and Mr. Omadachi Otache V. Notore Chemical Industries Ltd (Unreported) Suit No. NICN/YEN/57/2015, judgment of this court delivered on 16th January, 2019.

 

I am however of the view that in the circumstance of this case, the Claimant is entitled to one (1) month salary in lieu of notice. By exhibit CW1 the Claimant’s salary is put at the total sum of Five Hundred and Seventy Two Thousand, Seven Hundred and Forty Nine Naira only (N572, 749.00) per annum. Dividing this sum by 12 months will give N47, 729.083 (Forty Seven Thousand, Seven Hundred and Twenty Nine Naira, Eighty Three Kobo) which is what the Claimant is entitled to as his one month salary in lieu of notice. The 1st Defendant is therefore to pay the Claimant the sum of N47, 729.083 (Forty Seven Thousand, Seven Hundred and Twenty Nine Naira, Eighty Three Kobo) as one month salary in lieu of notice.

 

Relief ‘i’ is for the sum of Five Million Naira (N5, 000, 000.00) for breach of contract of employment. While I am of the view that the Claimant is entitled to damages for the breach of the contract between the parties, I however think the sum of Five Million Naira is rather outrageous and not justifiable. Considering the circumstances of this case, the sum of Five Hundred and Fifty Thousand Naira (N550, 000.00) is awarded to the Claimant for breach of the contract between the parties. In Anselim Irechukwu Osakwe V. Nigerian Paper Mill Limited (1998) 10 NWLR (Pt. 568) 1, the apex court held that damages lies against a party in breach of contract of employment.

 

Consequently, the Claimant’s case succeeds in part.

 

I shall now consider the 1st Defendant’s Counter-Claim filed on the 1st of March, 2013, wherein the 1st Defendant counter-claims as follows against the Claimant:

 

 

 

  1. An order directing the Claimant to pay back or refund the sum of N150, 000.00 (One Hundred and Fifty Thousand Naira) only wrongly and mistakenly posted into the Claimant’s account as Housing Allowance for the year 2010, which period the Claimant was no longer in the employ of or rendering any service to any of the Defendants at all.

 

  1. An order awarding damages of N5, 000, 000.00 (Five Million Naira) against the Claimant for breach of utmost good faith.

 

iii.               And for such further other order(s) as this Honourable Court may deem fit to make in the special circumstances of this case.

 

The contention of the Counter-Claimant is that, since the Claimant had already been suspended from work and no longer working for the 1st Defendant when the said sum of One Hundred and Fifty Thousand Naira (N150, 000.00) was paid into his account, he was not entitled to the money and that the said money was paid in error hence same ought to be refunded to the Counter-Claimant.

 

The Claimant’s position however is that, the money was not paid in error, and maintained the position that he was entitled to the money as his Housing Allowance for the year 2010. That even though he had been suspended, his salaries were allegedly running but being misappropriated by some staff of the Defendants hence they refused to oblige him his bank account statement despite repeated demands.

 

It may be pertinent to state from the onset that, a counter-claim which may also be referred to as a cross-action is a distinct action from the Claimant’s action before the court. This position of the law was aptly stated by the apex court in the case of Alhaji Buba V. Mohammed Taminu Garke (2003) LPELR-3431(SC), as follows:

 

“A Counter-claim is to all intents and purposes a separate action, although the defendant, for convenience and speed, usually joins it with his defence where a court so grants leave. Indeed, not only can a defendant apply for summary judgment on his counter-claim but also a plaintiff may counter-claim on defendant’s counter-claim.”

 

That being the case, it follows that the burden of proving a counter-claim lies on the party who alleges the counter-claim, i.e. the counter-claimant who must adduce credible and convincing evidence to enable him succeed on the counter-claim. See sections 131, 132, 133 and 134 of the Evidence Act, 2011.

The Counter-Claimant’s witness (DW) told the court in his evidence in chief that, the money paid upfront to the Claimant as his housing allowance was paid in error since the claimant was no longer working, having been suspended.

And that the Claimant hastily withdrew the money to forestall the reversal of the payment by the 1st Defendant. Upon being cross-examined, the witness maintained the position that, immediately after the suspension of the claimant his salary was stopped and that the Housing allowance was paid in error after almost a year of stopping the salary. That the Claimant was asked to refund the money through phone call because the 1st Defendant thought he would be honourable enough to refund the money. That Housing Allowance is a loan usually paid upfront to be repaid from staff monthly salary.

 

The Claimant during cross-examination maintained the position that, even though he was paid his Housing Allowance of N150, 000.00 in 2010, the money was not wrongly credited to his account and that he informed the Defendants of the payment through exhibit CW6. That he cannot return money that was duly credited to his account as a staff of the 1st Defendant.

 

Exhibit CW5 (the letter of indefinite suspension) indicates clearly that the suspension would be without pay and the Claimant has informed the court that from 31st March, 2009 when he was given exhibit CW5 he has neither worked for the 1st Defendant/Counter-Claimant nor been paid any salary. It is not in evidence that the Claimant was paid salary or any money from 31st March, 2009 until the month of March, 2010 when the said sum of N150, 000.00 was credited to his account. If the claimant’s suspension had not been lifted, the question that agitates my mind is how the Claimant will be entitled to the said money when his suspension was without pay and he has not shown the court that he received certain payments prior to March, 2010. I say this from the milieu of the legal implication of suspension from employment as having put in abeyance the privileges and rights of the person suspended from duty pending the determination of the allegation against him/her. See University of Lagos and Others V. Professor Luke Uka Uche (2008) LPELR-5073(CA); Mr. Osamata Macaulay Adekunle V. United Bank for Africa Plc (supra) and University of Calabar Teaching Hospital and Another V. Juliet Koko Bassey (supra).

Having evaluated the evidence vis-à-vis the law, I am not convinced that the Claimant was entitled to the said sum of N150, 000.00 paid to him during the pendency of his indefinite suspension from duty. He has failed to convince the court that he was entitled to the money as at when same was paid to him. The first Defendant is therefore entitled to the refund of the money. I so find and hold.

In the circumstance, relief ‘i’ of the Counter-Claim is hereby granted.

 

Relief ‘ii’ for award of Five Million Naira damages against the Claimant is refused as the 1st Defendant did not show the court the hardship suffered as a result of the payment of the money to the Claimant.

 

The Counter-Claim therefore succeeds in part.

 

For the avoidance of doubt, the court hereby makes the following orders:

 

  1. That the continued suspension of the Claimant from work for over three years without his knowledge of parties’ condition of service is wrong, illegal and a breach of the contract of employment.

 

  1. The 1st Defendant is to pay the Claimant the sum of Forty Seven Thousand, Seven Hundred and Twenty Nine Naira, Eighty Three (N47, 729.083) as one month salary in lieu of notice.

 

  1. The 1st Defendant is to pay the Claimant the sum of Five Hundred and Fifty Thousand Naira only (N550, 000.00) for breach of the contract between the parties.

 

  1. The Claimant is to pay back or refund to the 1st Defendant/Counter-Claimant the sum of N150, 000.00 (One Hundred and Fifty Thousand Naira) only wrongly and mistakenly posted to his account as Housing Allowance for the Year 2010, which period he was no longer in the employment of or rendering any service to any of the Defendants at all.

 

  1. The 1st Defendant/Counter-Claimant shall deduct the sum of One Hundred and Fifty Thousand Naira (N150, 000.00) from the total sum of N597, 729.083 (Five Hundred and Ninety Seven Thousand, Seven Hundred and Twenty Nine Naira, Eighty Three Kobo) awarded to the Claimant and pay the Claimant the balance of N447, 729.083 (Four Hundred and Forty Seven Thousand, Seven Hundred and Twenty Nine Naira, Eighty Three Kobo).

 

 

 

 

  1. The terms of this judgment shall be complied with within 30 days from today, failing which it shall attract interest at 10% Per annum until it is completely liquidated.

 

I make no order as to costs.

 

Judgment is entered accordingly.

 

 

 

Hon. Justice P. I. Hamman

Judge

 

 

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