IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: WEDNESDAY 26TH JUNE 2019 SUIT NO. NICN/OW/14/2016
BETWEEN:
MR IGNATIUS AKUWARA….……………………………..CLAIMANT
AND
THE REGISTERED TRUSTEES SEVENTH
DAY ADVENTIST CHURCH NIGERIA DEFENDANT
REPRESENTATIONS:
C.N. OKORO WITH E.A. IKEKWE, HOLDING THE BRIEF OF G.N. ELEWEKE FOR THE DEFENDANT.
COUNSEL TO THE CLAIMANT ABSENT.
NOTA BENE: This case was entirely heard from the beginning to conclusion at the Owerri Judicial Division of the Court but judgment delivered at the Enugu Judicial Division, pursuant to Order 62, Rule 12(1) of the NICN Rules, 2017.
JUDGMENT
INTRODUCTION
This suit was commenced via Complaint dated and filed 17th May 2016. It was accompanied with Statement of Facts. The following reliefs were claimed in paragraph 16 of the said Statement of Facts:
2013 salary arrears of N25,600.00
2013 Leave Allowance N30,720.00
2013 November salary N39,640.00
2013 December salary N39,640.00
2014 January to December salary N475,680.00
2014 leave allowance N 30,720.00 [sic]
2015 leave January to December salary N475,680.00
2015 leave allowance N30,720.00
2016 January to April salary N158,560.00
2016 leave allowance N30,720.00
Money spent for police N165,000.00 and money of the claimant at IBTC pension [sic]
It was also claimed in paragraph 18 of the said Statement of Facts as follows:
A declaration that the claimant is still an employee of the defendant.
N1804,440.00 [sic] being the arrears of salary and leave allowance the defendant ought to pay the claimant from November 2013 to May 2016.
An order of court ordering the defendant to pay the claimant the sum of N39,640.00 monthly from the day this suit was filed until the employment of the claimant is terminated by the defendant.
An order of court directing the defendant to write to the IBTC pension managers to release or pay to the claimant all the money the pension manager holds for the claimant or ought to pay the claimant.
The defendant filed a Further Amended Statement of Defence on 16th February 2018. The claimant replied by filing Reply of the Claimant to the Defendant Further Amendment [sic] Statement of Defence on 13th March 2018. The defendant also filed notice to the claimant to produce some documents on 27th November 2018. The defendant filed its final written address on 6th February 2019. The claimant filed his final written address on 26th February 2019 while the defendant filed its reply on points of law on 15th March 2019. That is all about the focal processes filed in this case. I move to the proceedings of the Court.
PROCEEDINGS
The case first came up before Hon. Justice O. Anuwe on 21st June 2016. It was on this date adjourned to 5th October 2016; and on that date, further adjourned to 7th November 2016 for further mention because of the letter for adjournment from the learned counsel to the defence. On 7th November 2019, the matter came up as adjourned. On the withdrawal of the defendant’s motion on notice filed 17th June 2016, it was accordingly struck out. Another motion filed by the defence for extension of time to file defence processes was thereafter taken and granted unopposed; and the case adjourned thereafter to 18th June 2017 for hearing. On this date, the learned counsel to the claimant moved his motion for enlargement of time to file reply to Statement of Defence. It was granted unopposed. Thereafter, the case was adjourned to 20th February 2017 for hearing. On this date, the learned counsel to the defence sent in a letter for adjournment on ground of ill health and indicated also, effort to settle amicably. On this bases, the case was adjourned to 22nd March 2017 for hearing. The Court sat next on 7th June 2017. On this date, the defence moved its motion for amendment. Objection was raised on the ground that the NBA stamp and seal was not affixed to the application. Ruling was reserved pending affixation of these, and case adjourned to 13th July 2017 for hearing.
The matter came up next on 23rd October 2017. On this date, it came up before me, for the first time, Hon. Justice O. Anuwe, having been transferred from the Owerri Division. The case was adjourned to 7th November 2017 for hearing of pending applications. On this date, the learned counsel for defence wrote for adjournment on ground of ill health. This application was opposed on the ground that the writer had other counsel in chambers and that; the motive was to delay the trial. The case was adjourned to 12th December 2017 for hearing of pending applications. On this date, the learned counsel to the defendant applied to withdraw the application filed on 21st March 2017, and it was accordingly struck out. The learned counsel thereafter moved the other motion filed on 11th December 2017 asking for leave to amend the Statement of Defence and other defence processes. It was granted unopposed. The case was thereafter adjourned to 20th February 2018 for hearing. On this date, the case could not proceed for hearing because, the learned counsel to the defendant attempted to move, yet another motion, for leave to further amend the Amended Statement of Defence. After the case was stood down for the Registry to look for the motion and reopened, it was adjourned to 17th April 2018 for definite hearing, with directive that counsel to the parties to comply with Order 37, Rule 5 of the NICN Rules, in settling their documents before the date.
On 17th April 2018, the matter came up as adjourned but could not proceed to trial as the learned counsel to the defendant asked for adjournment on the ground that, she had just been served with the Reply of the claimant. The case was therefore adjourned to 14th May 2018 and 28th June 2018 for definite hearing. The matter came up as adjourned on 14th May 2018. It was opened with the claimant testifying as CW1. Mr. Simeon Ikpa, the Court’s Registrar, acted as the interpreter from Igbo to English and vice versa.
CW1 was sworn on the Holy Bible and thereafter complied with all preliminaries. CW1 adopted his written depositions of 17th May 2016 and that of 13th March 2018. The written deposition filed 20th February 2019, having been withdrawn by the learned counsel to the claimant without opposition, was accordingly struck out. CW1 tendered exhibits A, B, C, & D. CW1 said his original letter of appointment was with the Screening Team, which he submitted to the team during screening and it refused to return it back to him. Evidence-in-chief of CW1 was brought to an end at this stage. The case was thereafter adjourned to 4th and 28th June 2018 for cross-examination and defence. On the 4th June 2018, the matter came up as adjourned, but could not go on because, the learned counsel to the defendant wrote for adjournment on ground of ill health. The case was therefore adjourned to the outstanding date: 28th June 2018. Yet on this date, the learned counsel to the defendant was still absent. The matter was adjourned to 16th July 2018 because, the Court was of the view that, the it imposed the date; and that, if it conflicted with an earlier date the defence counsel had at the High Court, the learned defence counsel could not be blamed.
The matter came up on 16th July 2018 as adjourned. The learned counsel to the defence: G.N. ELEWEKE conducted the cross-examination; and sought to tender through CW1 a letter of appointment of CW1. The learned counsel to the claimant: P.C. ETI objected. The objection was overruled and the letter admitted as Exhibit E. The cross-examination continued and was concluded the same day without re-examination. And the case was adjourned to 27th September 2018 for defence. The matter came up next on 28th November 2018. On this date, the defence opened. DW1 affirmed, and after compliance with the initial preliminaries, adopted his written depositions: the one made 7th November 2016, the additional one made 11th December 2017 and the further one made 16th February 2018. The attempt of the learned counsel to the defence to tender some payment slips was objected by the learned counsel to the claimant. The objection was overruled and these documents admitted, as Exhibits D1, D2, D3, and D4 respectively. The handbook of the defendant was admitted without objection as Exhibit D5, while the Police Investigation Report was tendered too, without objection and admitted, as Exhibit D6. Exhibit D7 was also admitted without objection and the testimony of DW1 was closed at that stage.
Cross-examination commenced in earnest the same day and was closed the same day. There was no re-examination. The defence was closed and the matter adjourned to 8th February 2019 for adoption. After two adjournments, the adoption took place on 29th March 2019. The learned counsel to the defence: G.N. ELEWEKE, moved his application for extension of time to file and deem the defendant’s final written address as properly filed. There being no objection, the application was granted, as prayed. Thereafter, the learned counsel to the defendant adopted the defendant’s final written address dated 20th January 2019 and filed 6th February 2019. The learned counsel to the defendant also adopted the undated reply on points of law filed 15th March 2019. Thereafter, the learned counsel to the claimant: I.A. AMANZE, adopted the final written address of the claimant filed 26th February 2019. Thereafter, the case was adjourned to 10th May 2019 for judgment. The judgment was not ready on this date hence; it was adjourned sine die till this date was communicated to the parties of its readiness.
Before going further, let me summarise the pleadings of the parties in support of which the witnesses testified and were cross-examined as narrated above.
CASES MADE BY THE PARTIES IN THEIR PLEADINGS
The claimant pleaded that he was employed by the defendant as a groundsman and that, sometime in 2013, he was informed that there was going to be a screening exercise of staff and staff were asked to produce their employment letters. The claimant pleaded that, he came with his employment letter to the screening; and that, the Administrative Officer of the defendant’s hospital, collected his appointment letter for the screening and failed to return it thereafter. Notice was given to the defendant to produce it. The claimant pleaded that, he had been diligent in his work. The claimant pleaded that, the defendant bought a generator in 2012 and assigned him to man it, with instruction that the door to the generator house must not be left opened because, the security used to steal fuel from the generator. The claimant pleaded that on a particular day, he came to work and observed that robbers had come through the back yard and broke into the generator house and stole some parts. He pleaded that he discovered this in the evening of that Sunday. He pleaded that, he reported to the accountant, who came with him to inspect the place; and thereafter, they both went to report to the TR and the Medical Director.
The claimant pleaded that the generator house was thereafter fortified with iron burglary proofs but that again, on 17th November 2013, robbers came visiting and this time around, broke the padlocks to gain access to the generator house and made away with some parts. The claimant said this time around, the Management accused him of being responsible since he had the keys; and they made the police to arrest him. He pleaded that he was later released. The claimant pleaded that the last salary paid him by the defendant was N39,640.00 for the month of October 2013; and that, on 4th December 2013, he was served with letter of suspension without pay pending police investigation into the matter, and that, up till three years after, the defendant has failed to inform the claimant of the outcome of the investigation. The claimant pleaded that, he had contributed above N200,000.00 into his IBTC Pension account and that, unless the defendant writes the pension scheme, he would not be paid. The claimant proceeded to plead his monetary entitlements and that, he is still in the employment of the defendant; and therefore, claimed the pleaded reliefs.
The extant pleading of the defendant is the Further Amended Statement of Defence dated 12th February 2018 and filed 16th February 2018. The defendant admitted paragraph 5 of the Statement of Facts, to the extent that, the claimant was assigned to the generator house and was on night duty. The defendant pleaded that the claimant resided within premises. The defendant pleaded that, contrary to the pleading of the claimant, at the second time of theft of the generator parts, the locks to the generator house were not broken nor the door and wall because, of the burglary proofs. The defendant pleaded that it was the police that informed the defendant that they had not completed investigation. The defendant pleaded that the sum of N39,640.00 stated by the claimant as his salary is the gross pay subject to tax and other deductions. The defendant pleaded that, contrary to the pleading of the claimant, the suspension letter was served on the same 18th November 2013 as dated; and that, the indefinite suspension was in line with the defendant’s handbook. The defendant pleaded that, the claimant has since the suspension, been earning money from the Keke being operated; and that the investigation had not yet been concluded but that, the defendant is still interested in the case. The defendant pleaded that, the claimant is only entitled to his pension at the termination of his appointment; and that it is only when the claimant applies for the pension that the defendant can write the pension administrator to release the pension; and that the claimant had refused to apply.
The defendant pleaded further that it is not indebted to the claimant, as pleaded. The defendant pleaded that the claimant had admitted that he no longer works for the defendant, by asking for his pension. The defendant pleaded that all the processes filed in this suit are not incompetent by reason of defect in the stamp and seal affixed. I will not bother to summarise the pleadings against the claimant’s previous reply because, the defence is not supposed to react to it and because, it is not even the extant reply of the claimant.
The claimant reacted to the Further Amended Statement of Defence by filing “Reply to of the Claimant to the Defendant Further Amendment [sic] Statement of Defence” on 13th March 2018. The claimant pleaded that contrary to the defence, Silas normally had the key to the generator house in the morning, while he took it in the evening and that both, each had just a spare key, while the remaining keys’ duplicates were with the treasurer. The claimant reacted that, the generator house was actually broken into as reported and that, the generator house had since been relocated to the gate. The claimant also pleaded that, the police searched his house and did not find anything incriminating and had in their custody the broken keypad. The claimant pleaded that, contrary to the pleading of the defence, the police closed the case and stopped inviting him, since three years ago because, they knew he was innocent. The claimant pleaded that, it was not part of their contract that the defendant shall deduct tithe from his salaries and that, the pay slips tendered by both sides, showed that his salary was N39,640.00 but for the illegal deductions; and that, since he is on suspension, the defendant cannot deduct rent for its accommodation that he no longer used.
The claimant pleaded in reaction that, contrarily the suspension letter was not served on him the on the date stated on it; and that, it was served on him after his release from police cell. The claimant also said, the conditions of service and collective agreement [the handbook] was never in existence before the institution of this action; as he was never given. The claimant pleaded that, he had not been operating keke contrary to the defence, and that, he had been at home since. The claimant reacted that he had to make a claim for his pension since he had finally come to Court to avoid multiplicity of suits. The claimant pleaded that, up till now, his employment had not been terminated and that, he had not been able to apply for pension because the defendant had not terminated his employment. The claimant reiterated that he is entitled to his claims before this Court. The claimant pleaded that, the processes franked by his counsel, are validly franked because, his counsel was called to the Bar in 2001 with No. SCN031422 and that, the name that appeared on the seal and the Bar name are for the same person. The claimant denied that the keypad was found in his house. He reacted too, that, he was not on duty when the incident happened. The claimant said the keypad was broken from outside and not from within and that, the security man first reported to the police that he was responsible for the theft because, he was asked to put on the small generator and that it was this that caused the delay that made the security man to the report to the police before him; and that, this incident happened when he was not on duty.
The claimant reacted that the police investigation report was made for the purpose of this suit and that the police have stopped inviting him since 2013. The reactions of the claimant to paragraphs 27, 28, 29, and 30 are not in reactions to the Further Amended Statement of Defence, which is the extant Statement of Defence, but to the abandoned Amended Statement of Defence.
Let me now go on to summarise the final written addresses of the counsel to the parties. I shall start with that of the defendant filed first then, that of the claimant and finally, the reply on points of law by the defendant.
SUMMARIES OF THE FINAL WRITTEN ADDRESSES
Final Written Address of the Defendant
G.N. ELEWEKE franked the defendant’s final written address. The learned counsel formulated three issues for the determination of the case, to wit:
Whether or not the Claimant’s indefinite suspension without pay is lawful having regards to the Claimant’s conditions of service as contained in the terms and conditions of service. [sic]
Whether or not the Claimant in spite of the above is still an employee of the Defendant and therefore entitled to paragraphs 18(b) and (c) of his statement of facts? [sic]
Whether the Defendant can be compelled to write to IBTC Pension Managers or pay the claimant the money referred to in paragraph 18(d) of the Claimant’s statement of fact [s] or any sum whatsoever.
On Issue 1: whether the claimant’s indefinite suspension without pay is lawful, the learned counsel submitted that, the suspension of the claimant was lawful by virtue of Exhibit D5 placed before this Court by virtue of paragraphs 12 of the Further Amended Statement of Defence dated 12/2/2018 and the Further Written Statement on Oath of DW1 filed 16/2/2018. The learned counsel argued that the claimant neither challenged the lawfulness of the suspension nor adduce any evidence to show that the suspension was not in tune with his condition of service. The learned counsel submitted that, where an employee fails to tender and show the terms and conditions of his service that were breached, the action fails. The learned counsel cited A.J. v. C.B.D.A. (2015) 16 NWLR (Pt. 1486) 554 at 568, D-F and NEPA v. Eyong (Pt. 175) (2003) FWLR 395-584. The learned counsel argued that, the defendant placed before this Court Exhibit D5, the conditions of service. The learned argued that Exhibit D7 [the letter of appointment], which the claimant admitted was served on him, stated that Exhibit D5 came with it; and therefore, the claimant was in possession of Exhibit D5, and that, DW1 confirmed this under cross-examination. The learned counsel submitted that, employee handbook needs not be signed to be valid and that, the claimant was given the said Exhibit D5 at the time of appointment.
The learned counsel argued that, had the claimant produced his own copy of Exhibit D5, the Court would have seen that, it tallied with the one tendered by the defendant. The learned counsel submitted that, the claimant instead, tendered Exhibit D, “which is the original document” and submitted that, it was made in the course of this suit and for this suit, as no such document was served on the defendant’s President, as it is still in the possession of the claimant. The learned counsel argued that, this offends section 83(3) of the Evidence Act and thus inadmissible. The learned counsel thereafter moved to issue 2.
On Issue 2: whether the claimant is still under the employment of the defendant, the learned counsel submitted that, from Exhibit C, it is clear that the indefinite suspension without pay was made pending the outcome of police investigation; and that via paragraphs 10 and 24 of the Amended Statement of Defence, it was pleaded that, the investigation is still ongoing. The learned counsel submitted that, the claimant, under cross-examination, on 16/7/2018 corroborated this fact. The learned counsel argued that, based on the police report [Exhibit D6], which said the claimant was suspected, the claimant was dismissed vide Exhibit D7 served on the claimant by DW1. The learned counsel submitted that this evidence was never directly rebutted. The learned counsel submitted that, even if the claimant were not served with letter of dismissal, his demand for his pension is admission that he had been dismissed from the date of suspension because; he used that date as the base date for his pension demand. The learned counsel cited an unreported decision of this Court in Ekwere & Anor v. Government of Imo State & Ors [supra] to the effect that, once an employer stops paying salary and the employee stops going to work, the employment had been terminated, even without issuance of formal termination letter; and that, since the defendant had stopped payment of salary and the claimant had stopped coming to work, the employment had been determined.
The learned counsel argued that, since the claimant never said anything before the suspension, about being owed outstanding salaries, it follows that, the reliefs being claimed now stem from unearned salaries and allowances. The learned counsel cited Ekwere & Anor v. Government of Imo State & Ors [supra]. The learned counsel referred to Exhibits A, B, C, D3, & D4 as the correct net pay of the claimant as pleaded in para. 11 of the Statement of Defence filed 7th November 2016 and paragraph 11 of the written deposition of Elder Uzochi filed 7th November 2016; and urged the Court that, the figure contained therein is the take home of the claimant. The learned counsel argued that, the deduction of tithes from the salaries of the claimant was in line with Exhibit D5 at paragraph 150.45. The learned counsel submitted that, the police report was not made for this case but in the normal line of police investigation and cited section 83(4) of the Evidence Act, to the effect that, for that section to come into effect, somebody interested in a suit must have made the document in issue. The learned counsel submitted that the claimant did not discharge the burden of proof on him and cited Bubbani v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 209, r. 6; and urged the Court to hold that the claimant is no longer an employee of the defendant. Thus ended arguments on issue 2 and the learned counsel moved to Issue 3.
On Issue 3: whether the defendant could be compelled to write the IBTC, the learned counsel submitted that, the defendant could not be compelled to write to the IBTC because, the defendant is a third party to the contract between the claimant and the IBTC; and therefore, has no locus to direct the IBTC to pay the pension. The learned counsel submitted that, the claimant failed to apply for his pension and that the claimant had failed to show that the IBTC had written to the defendant asking for its inputs. The learned counsel urged the Court to so hold.
The learned counsel to the defendant ended his arguments on the final written address by urging the Court to dismiss the suit with punitive cost. I shall now move to the final written address of the claimant’s counsel in rebuttal.
Final Written Address of the Claimant
CHIOMA G. OKPALA franked the claimant’s final written address. The learned counsel formulated three issues, as follows:
Whether the claimant is entitled to the payment of salaries during the period of suspension [sic]
Whether the claimant is still an employee of the defendant. [sic]
Whether the defendant can be compelled to write to IBTC pension to release or pay to the claimant the money referred to in paragraph 18 (d) of the claimant’s statement of fact [sic]
Arguing Issue 1, the learned counsel submitted on the issue that the suspension was done in accordance with Exhibit D5 that, the claimant testified that he was not issued with any condition of service [Exhibit D5] and that he reaffirmed this under cross-examination. The learned counsel submitted that, the claimant is not challenging the suspension but that he ought to be paid during the suspension. The learned argued that, in order to avoid payment, the defendant argued that the conditions of service allowed it to suspend without pay but failed to show when the condition of survive was given to the claimant and the person who gave him. The learned counsel submitted that, since it is the defendant that is alleging that the claimant was given the condition of service, it is bound to lead evidence to that effect. The learned counsel cited Okwubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723. The learned counsel submitted that, if it is not proved that the condition of service was brought to the notice of the claimant then, the claimant could not be bound by its contents.
The learned counsel argued that the claimant challenged the letter of appointment tendered as not the one issued to him. The learned counsel submitted that, a perusal of the letter did not show that Exhibit D5 was given to the claimant. The learned counsel submitted that, in the event of failure to prove that the defendant gave the handbook to the claimant, he must be paid his salaries during suspension. The learned counsel cited Mobil Producing Nigeria Unlimited v. Udo (2009) ALL FWLR (Pt. 482) 1177 at 1227 and the Back’s Law Dictionary 6th Edition at p. 1447 and Akunyanju v. Unilorin (2005) 7 NWLR (Pt. 927) 87 to buttress his submission. The learned counsel submitted on the basis of the above that, a suspended staff is still an employee of the employer and liable to be paid for the time of suspension. The learned counsel submitted that, the argument that the claimant did not submit his employment letter and as such not entitled to any relief, could not hold because, the claimant pleaded and testified that the defendant took back the letter from him and failed to return it. The learned counsel submitted that, the defendant did not deny this; and that as such, the claimant could not be expected to produce what he did not have.
The learned counsel submitted that, the amounts the claimant claimed were arrived at by mathematical calculations and that, they were sums certain already received as salaries monthly, he ought to be so paid. The learned counsel urged the Court to resolve the issue in favour of the claimant; and moved to issue 2.
On Issue 2, the learned counsel submitted that, the claimant is still an employee of the defendant contrary to the argument of the defence that it has served the claimant with termination notice. The learned counsel submitted that, the onus is on the defendant to prove that it served the termination notice on the claimant since the claimant had denied service on him. The learned counsel submitted that, if the termination letter was not served on the claimant, he remained an employee of the defendant; and entitled to his salaries. The learned counsel submitted that, a look at the Further Amended Statement of Defence shows that the defendant never stated that it had terminated the employment of the claimant and never pleaded any document to that effect; and that all that was pleaded was that the claimant had accepted he was no longer working for the defendant, and that the claimant explained what he meant in paragraphs 12 and 15 of the Reply. The learned counsel submitted that it is the duty of the defendant to prove that a letter of termination was issued on the claimant and that he received it. The learned counsel submitted that, since the letter of dismissal was never pleaded, it should be expunged, if admitted. On this, the learned counsel relied on Onyia v. Union Bank Ltd (1993) 3 NWLR (Pt. 286) 698 at 705. The learned counsel urged the Court to hold that, since the defendant has failed to prove it served the claimant with termination letter, the employment had not been terminated.
The learned counsel submitted on the argument that because the claimant asked for pension he has conceded termination that, by arguing that the claimant is not asking the defendant to pay the pension but to write to a third party to pay it. The learned counsel submitted that, the claimant stopped going to work because the defendant suspended him and not that he voluntarily stopped going to work, as portrayed by the defendant. The learned counsel submitted that, the reliance placed on the handbook to justify payment of tithes and other deductions could not avail the defendant because, the handbook was not served on the claimant and was not part of the contract; and as such, tithes and other deductions have not been proven to be part of the contract.
The learned counsel submitted too, that, the police investigation report would not help the defendant because, the claimant had not been charged and convicted on the allegations of crime hence, a dismissal could not be based on it. On this, the learned counsel relied on Olanrewaju v. Afribank Plc (2001) FWLR (Pt. 72) 2008; Garba v. Unimad (1986) 1 NWLR (Pt. 18) and Savannah Bank Ltd v. Fakolum (2002) 1 NWLR (Pt. 749) 544. The learned counsel submitted further that, the defendant could not rely on the police report, which is not evidence of commission of crime to punish the claimant. The learned counsel submitted that, it is true that the defendant may hire and fire but in this case, it hired and suspended but has not fired the claimant. The learned counsel urged the Court to find on this issue in favour of the claimant; and moved to his last issue.
On Issue 3, the learned counsel submitted that, it is the duty of the defendant to issue to the claimant letter of termination so that, the claimant could use it to process his pension. The learned counsel argued that because no letter of termination had been given to the claimant, he had been hindered from processing his pension.
The learned counsel finally urged the Court to determine this case in favour of the claimant. This ends the summary of the final written address of the claimant. I shall now turn to the reply on points of law filed by the defendant.
Reply on Points of Law by the Defendant
G.N. ELEWEKE franked the Reply on Points of Law by the Defendant. On the issue of denial of Exhibit D7 [Letter of Employment] by the claimant, the learned counsel submitted that, the denial is of no moment in that, the claimant only denied that there was no apostrophe before “s” in the word “ground’s man” in the original letter issued him, which the learned counsel submitted, is of no substance, as the substance of the letter remains the same. The letter, counsel submitted, shows the claimant had his own copy but merely refused to produce it. The learned counsel argued that, by the admission that the indefinite suspension is lawful, but that it is only failure to pay salaries that is unlawful, is by implication, admission that the conditions of service provides that the claimant could be indefinitely suspended and that the claimant is in possession of the conditions of service. The learned counsel submitted that, since it is the claimant that alleged that he ought to be paid during suspension, the onus is on him to prove his entitlement thereto. The learned counsel submitted that Mobil Producing Unlimited v. Udo [supra] was cited out of context by the learned counsel to the claimant, in that, the said case established that, where the contract so provides, the employer could suspend without pay. The learned counsel submitted that, the case of Mobil Producing Unlimited v. Udo [supra] has statutory flavour while the instant case is master/servant relation.
The learned counsel argued that the argument that the claimant was not given the handbook would not sail in that, the claimant had admitted that he was given the letter of appointment, to which the condition of service was attached. The learned counsel argued that, the defendant pleaded in paragraph 29 of the Amended Statement of Defence dated 1/11/2017 and filed 11/12/2017 that claimant was dismissed after the defendant received the police investigation report hence, the contention of the learned counsel to the claimant that the defendant did not plead this is unfounded. The learned counsel argued that contrary to the submission of the claimant’s counsel that the defendant could not dismiss the claimant on suspicion of committing crime without trial and conviction, the defendant could and cited an unreported decision of this Court in Suit No. NICN/OW/65/2015 – Chukwuemeka v. Skye Bank Plc, pp. 24-25 and Eze v. Spring Bank Plc (2012) ALL FWLR (Pt. 609) 1076 at 1089, and submitted that Olanrewaju v. Afri Bank Plc [supra] cited by the learned counsel to the claimant, was cited out of context. The reply on points of law was brought to an end by urging this Court to dismiss the case.
I am done with summaries of the final written addresses. My next duty is to give my decision. In giving my decision, let me state that I have carefully studied all the processes in the file and digested them thoroughly. I have also carefully went through the evidence-in-chiefs and cross-examinations of the witnesses and digested them in toto. I also vividly recollect the demeanour of the witnesses. I have carefully studied the written addresses too and digested them in full. I have also carefully noted the authorities [case law and statutory] cited by counsel to the parties and checked the focal ones. Finally, let me state that, I am aware that I did not summarise the evidence of the witnesses but I will make references to these pieces of evidence as occasions demand to buttress my decision. Having satisfied myself on these essentials, I, with confidence, now proceed to give my decision.
COURT’S DECISION
I adopt the three issues formulated by the learned counsel to the claimant. They are more straight to the point and concise than those formulated by the learned counsel to the defendant. But before going into these issues, let me settle a preliminary, but focal, point that might have a telling effect on the case. This is the issue of: which pleading is to be used for the defendant in this case? The defendant filed three separate and different Statements of Defence in this case. The first one titled “Statement of Defence” dated 26th June 2016, was filed on 7th November 2016. The second one is titled “Amended Statement of Defence” and dated 1st November 2017 and filed 11th December 2017. The third one titled “Further Amended Statement of Defence” and dated 12th February 2018 was filed 16th February 2018.
The learned counsel to the defendant had referred to the three Statements of Defence in his final written address. For example, he referred to paragraph 12 of the Further Amended Statement of Defence dated 12/2/2018 at page 4, paragraph 2.04, lines 1-2 thereof. However, at page 5-6, paragraph 3.01, lines 3 and 4 at page 6, he referred to the Amended Statement of Defence. At paragraph 3.03, page 8, line 3 and, he referred yet to the Statement of Defence dated 26/6/2016 and filed 7/11/2016, at paragraph 3.04, still at page 8, he also referred to paragraph 26 of the Amended Statement of Defence dated 1/11/2017 and filed 1/12/2017. The learned counsel to the defendant showed his acute awareness that the learned counsel to the claimant relied on the Further Amended Statement of Defence by referring to the ‘Reply of the Claimant to the Further Amendment of Defence’ at paragraph 3.02, lines 17 and 18 at p. 7 of his final written address; and also at paragraph 4.01, page 9, line 8, where he referred to the ‘Reply of the Claimant to the Defendant Further Amendment Statement of Defence.’
However, I have checked and observed that on 20th February 2018, the learned counsel to the defendant made attempt to move the motion dated and filed 16th February 2018 by which leave to file the Further Amended Statement of Defence was sought. The attempt was hampered because the learned counsel to the claimant said he had not been served. The case was stood down to enable the Registry search for the service copy but when the case reopened, after the learned counsel to the claimant had been served, the matter was just adjourned to the next date for hearing without anything said about the motion again. On the next date, which was 17th April 2018, the matter could not go on again because, the learned counsel to the defendant said he was just served with the reply of the claimant to the Further Amended Statement of Defence. It is clear from this that, counsel to both parties and the Court acted under the erroneous belief, induced by the defence counsel that, the motion had been moved and granted. Also at trial, DW1, who testified for the defendant, adopted the further written deposition filed along with the Further Amended Statement of Defence, as the third written deposition. The equitable maxim, ‘the law deems as done that which ought to have been done’ is applicable here. The leave to amend the Statement of Defence is deemed granted on that 20th February 2018, and the Further Amended Statement of Defence dated 12th February 2018 and filed 16th February 2018 is deemed properly filed and served on that date too. The conduct of the learned counsel to the defendant, in this instance, estops him from resiling from the Further Amended Statement of Defence.
So, it is clear that the learned counsel to the defendant deliberately decided to make use of all the three Statements of Defence filed in this suit. I cannot understand the rationale for this. The first Statement of Defence was duly amended on 11th December 2017 while this second one was also deemed amended on 20th February 2018. It is not possible in law for the defendant to rely on three different Statements of Defence after the two pervious ones had been subsequently amended by the latest. The law is accurately stated in O.J. Bamgbose, Digest of Judgments of the Supreme Court of Nigeria, [Safari Books Ltd, Ibadan, 2014] Volume 1, page 15, paragraph 140, where it was stated that:
“Once an amendment to a pleading is allowed by the Court, the amendment relates to the original pleading which must be regarded as having been discarded. Madam Safuratu Salami & Ors v. Summonu Eniola Oke (1987) 9-11 SC 43.”
The Further Amended Statement of Defence having been deemed to be allowed on the 20th February 2018, it relates back to the original Statement of Defence. The two previous Statements of Defence are deemed discarded. Hence, the extant Statement of Defence is the Further Amended Statement of Defence, and I so hold. So, references to the two erstwhile statements of defence are references to abandoned processes. The Court cannot take cognisance of such references and such discarded statements of defence in deciding this case.
Having done with the preliminary issue, I come to the three issues adopted for the resolution of the substantive case. I take them one by one.
Under Issue 1: Whether The Claimant Is Entitled To The Payment Of Salaries During The Period Of Suspension? The two preliminary points to be settled to make progress are: 1. Whether the letter of appointment tendered by the defendant is the original one by which, the claimant was employed? And 2. Whether the claimant was given a handbook? The claimant pleaded that the original letter of appointment was collected from him during screening and never returned back to him – see paragraph 2 of the Statement of Facts. The defendant responded to this in paragraph 3 of its Further Amended Statement of Defence. By this paragraph, the defendant merely said it admitted paragraph 2 of the Statement of Facts to the extent that the claimant was employed and put the claimant to the strictest proof of the other parts of the paragraph. In law, such is not a defence. The implication is that, it admitted that it collected the letter and never returned it back to the claimant – see p. 243, para. 2850 of Digest of Judgments of the Supreme Court of Nigeria, Volume 1 [supra].
Be that as it may. Now, at trial, the claimant did not tender his letter of appointment and stated that he had no photocopy. At trial too, the defendant’s attempt to tender the alleged letter of appointment of the claimant through the claimant under cross-examination. When shown to the claimant, he retorted, “The letter is not supposed to be like this. It has been reprinted (reproduced). The difference is that, the paper of the former letter was thicker than that of the present. In the first letter, the phrase ‘ground’s man’ in this letter was written as one word ‘groundsman’ in the former letter.” When asked whether he tendered a photocopy by the Court, he said he didn’t because he had no photocopy. His counsel objected on the grounds that the document was produced for the purpose of this case and that its authenticity was being contested. The objection was overruled and the document was admitted, as Exhibit E without prejudice to the issue of weight to be decided during evaluation. Now, on the issue of weight, I observed that, this Exhibit E, does not appear to be a newly produced document, as claimed by the learned counsel to the claimant. A careful look at it would show that, it is an old document. I also observed that, it was written on top of Exhibit E at the right hand side near the second address given, in minute writing “file” in blue biro, meaning that, the one produced in Court is not the one given to the claimant at the point of appointment but the file copy of it. I also observed that, the staple pin by which the two-paged document is secured showed sign of rusting and that the Exhibit E is perforated, signifying the hole by which it was secured in the file.
I had observed, while ruling on the admissibility of Exhibit E that I wonder how the claimant, who claimed not to have a copy of the letter with him, could have noticed such microscopic deviation in the phrase ‘ground’s man’ in Exhibit E and the word ‘groundsman’ in the one alleged to be the original. I took note too that, the claimant did not attack any other contents of Exhibit E. I still stand by my observation under my ruling admitting the document that, “I think if CW1 must succeed in this objection, he must be able to show more material distinction between this document and the one he has in mind.” Though, I had indicated then, that this does not detract from the issue of weight to be attached to the document. The fact that I doubted authenticity of the objection, then and now, is established. The untruthfulness of the objection is further heightened by my additional observation that, the document produced and admitted, as Exhibit E is not a newly produced document, as the learned counsel to the claimant and the claimant would want the Court to belief. Exhibit E, being a file copy, for it to have the look of oldness, it must have been in the file for long because, being in the file, it is much more protected against the vagaries of weather and constant use that would wear it out quickly and make it become old. Yet it still looked old in spite all these protections against the vagaries of weather and use. By looking old, this clearly signifies that, it is long in existence unlike the copy given to the claimant that cook easily look old because of vagaries of weather and constant use. For the staple pin to become rusty and even the staple holes’ rustiness could only be explained by the oldness of the document.
I took good advantage of the demeanour of the CW1 during cross-examination and I am convinced that he was not speaking the truth on the doubt being cast on the authenticity of Exhibit E. When this is combined with my reasoning and deductions above, it would be seen that, the claimant did not come out clean on the issue of the aspersion cast on the authenticity of Exhibit E. I therefore hold that, Exhibit E is the exact copy of the letter of appointment issued to the claimant at inception of his relationship with the defendant. Having answered the first leg of issue 1 against the claimant and in favour of the defendant, I proceed to answer the second leg of the issue, that is: Whether the claimant was given the handbook or the conditions of service?
Paragraph 4 of the said Exhibit E contains the following:
“You are also entitled to a Medical Allowance: 75% out-patient and 90% in patient together with your immediate family members. Other allowances will be as approved by the Union in accordance with the conditions of service attached to this letter.” [Underline supplied for emphasis]
This provision is the focal point of the resolution of whether the claimant was given a handbook at the inception of the contract. At paragraph 12 of the Further Amended Statement of Defence, the defendant pleaded the Handbook that contains further conditions of service. The claimant replied in paragraph 8 of his Reply of the Claimant to the Defendant Further Amendment [sic] Statement of Defence and pleaded that, the said handbook was never in existence before the institution of this action and that it was produced for the sole purpose of this action, to frustrate the suit. This handbook was tendered by the defendant and admitted as Exhibit D5. In tendering it on 28th November 2018, DW1 stated that:
“In paragraph 12 of the Further Written Deposition of 16th February 2018 I made mention of Conditions of Service also known as Employee Hnadbook. Yes, my Lord, this is the Employee handbook of the Seventh Day Adventist Church. It is made in several copies and given to employees together with employment letters.”
It was not objected and was accordingly admitted without objection. Now, the letter of appointment referred to this handbook, at its paragraph 4. When the letter of appointment was tendered, the claimant and his counsel did not challenge the letter of appointment on the ground that the original did not contain reference to the handbook and did not also challenge that, the handbook was given to the claimant at the point of employment. Under cross-examination on 28th November 2018, the learned counsel did not also challenge the Hnadbook on the ground that it was not given to the claimant at the inception of the contract. All he did was to cross-examine DW1, who tendered the Handbook, on the issues of the handbook not being dated and signed; and that, the registered name of the defendant was not written on the handbook. At page 102 of Digest of Judgments of the Supreme Court of Nigeria, [supra] Volume 2, paragraph 1178, it was stated:
“Where a party fails to cross-examine a witness on a particular matter, the implication is that he accepts the truth of that matter as led in evidence. P.O. Oludamilola V. The State (2010) 2-3 SC (Pt. III) 194.”
It is plainly seen that, the learned counsel to the claimant did not cross-examine the DW1 on the matter or fact of the handbook being given to the claimant with the letter of appointment, as pleaded by the defence and testified by the DW1. It means, on this very vital fact, the evidence of DW1 was not challenged. The learned counsel to the claimant went about cross-examining on issues that are better left for the address stage. Whether or not the handbook was dated and signed or the registered name of the defendant was written on the handbook and the letter of appointment are issues that are ex-facie the documents; and ought to be brought out in the address and not at cross-examination. The implication is that, on this vital point, the evidence of the defence is true. I must therefore come to the irresistible conclusion that, the handbook was given to the claimant at the inception of the employment with the employment letter.
Now, before I decide the issue of the effect of this on the case, let me examine the effect of the line of cross-examination done on Exhibits E and D5 especially. I am of firm opinion that whether or not the handbook is signed does not detract from its efficacy in law. The handbook, being an integral part of the letter of appointment – see Baba V. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388 at 413, B-F, and the letter of appointment, being duly signed, cured any defect or absence of separate signature and date on the handbook. By direct incorporation of the handbook into the letter of appointment, which is the primary contract between the parties, the handbook becomes part and parcel of the letter of appointment and forms an integral part of the contract initiated by the duly signed letter of appointment. This also takes care of the argument that, the handbook was newly produced for the purpose of this case. Being issued together with the letter of appointment and served together on the claimant at the inception of the contract, I don’t know how it could be rationally argued that; it is just freshly prepared for the purpose of this case.
The DW1 had testified without any challenge that the handbook is produced in several copies and given to employees at inception with the letters of appointment. The claimant, who now refused to tender the copy given him at inception, cannot expect the defendant to tender what is not with it. The defendant must tender a copy of the handbook in its possession, which naturally might be fresh copy or newer copy, as the old copies would have been given out at the employment of staff and copies produced as the need arises. This reality does not make such fresh copies different handbook. I cannot also find any merit in the issue being made of the registered name of the defendant, not being on Exhibits E and D5. This must be so, in view of the averments of the claimant in paragraph 3 of the Statement of Facts that, Seventh Adventist Hospital and the Motherless Babies Home are under the legal personality of the defendant. To begin to make a distinction between the Seventh Day Adventist Church and its registered trustees is like trying to make a distinction between a dozen and twelve. The learned counsel has not complained of being misled by such; and had actually fought this action on the merit. I therefore hold that, the handbook tendered and admitted, as exhibit D5, is the authentic handbook of the defendant issued and given together with the letter of appointment to the claimant at the inception of the employment in issue. Having reached this juncture, it follows that the handbook must take its legal effect on the contract of employment in issue.
The defendant pleaded page 6, No. 140.05 of the handbook as given it the vires to suspend the claimant without pay. The clause 140.05 of the handbook provides thus:
“An employee maybe [sic] suspended for gross misconduct (which shall be in the opinion of the Church or Institution) for a period of time or indefinitely pending the outcome of investigation.’
‘An employee who is suspended indefinitely shall not be entitle to any salary or allowances throughout the period of such indefinite suspension.” [sic] [Underlines supplied for emphasis]
The crux of the matter is as underlined above. I think this is all the more reason why the claimant cleverly denied being issued with the handbook and feigned ignorance of its existence in his pleadings. But as usual with people who want to be smarter than the law or the truth of a factual situation, they often turn out to be wise in half. The claimant forgot to challenge the defendant on this point at the point in which the letter of appointment was tendered and also failed to cross-examine on this point. In both cases, he went on chasing the shadow and left the focal points. In an unreported decision of this Court, in Suit No. NIC/EN/105/2013 – Enyidede v. Roche Construction Nigeria Limited & Anor [Delivered at Owerri Division February 10, 2015] Per Anuwe J held at p. 18 thereof, and I quote with approval:
“In this case of MOBIL PRODUCING NIG. UNLTD vs. UDO, it was the opinion of the learned Justices of the Court of Appeal that during suspension, the employment continues to subsist and the employee is entitled to his salaries during the period except there is a condition of service which permits the employer to stay payment during period of suspension. In a contract of employment, there is no implied contractual right on the part of employer to suspend an employee without pay on disciplinary grounds. For there to be no pay, it must be expressly stated in the contract of service between the parties… Further more, whether an employer has power to suspend an employee depends on the terms of the contract of employment. Suspension will be wrongful if the employer has no power to suspend given the contract, in such a case, the employee is entitled to wages he lost by being suspended…” [Underline supplied for emphasis]
The above is the position of law on suspension without pay. By the production of the handbook, it is abundantly clear that, the defendant had the right to suspend indefinitely, and that when it does, it would not pay salaries or allowances. I will not dabble now into the intricacies of the revolution of employment and labour relations engendered by the Third Alteration Act in relation to the fairness or otherwise of suspension without pay. That not been argued before me; and I shall not venture into it. I shall leave it till an opportune time when it comes before me properly. I contend myself with the present issue. The issue before me is whether or not the claimant was issued and served the handbook, rather, whether the defendant made the claimant aware of the handbook; and I have found that, he was acutely made aware by being issued the handbook at the inception of the contract. The logical effect must follow. In obedience to the above authority, I hold that, it is part of the contract between the parties in this suit that, the defendant could suspend indefinitely without pay. I hold that, consequential to this, the claimant was lawfully suspended infinitely without pay. In effect, I resolve issue 1 as formulated by the learned counsel to the claimant against the claimant and in favour of the defendant. I therefore hold, without equivocation that, the claimant is not entitled to payment of salaries and allowances during the period of the indefinite suspension in issue. I move to issue 2.
I now come to the issue of the dismissal of the claimant in the course of this suit. This raises second issue formulated by the learned counsel to the claimant, to wit “Whether the claimant is still an employee of the defendant? The centerpiece of this is whether the defendant had dismissed the claimant. Once this initial issue is resolved, it would be easy to resolve issue 2. The argument of the learned counsel to the claimant is that because, the defendant never pleaded that the claimant had been dismissed and also never pleaded any document to that effect, the claimant remained in the defendant’s service. I have held that the extant pleading of the defendant is the Further Amended Statement of Defence; and that, the references to the Statement of Defence and the Amended Statement of Defence are references to discarded processes, and as such, the Court could not countenance these references for the resolution of the issues at stake. I have carefully combed through the entire Further Amended Statement of Defence and truly couldn’t find any pleading on dismissal and document of dismissal.
Pleading is the fulcrum of evidence. It is trite that any evidence led on unpleaded fact goes to no issue – see Okoko v. Dakolo at www.nigeria-law.org. Thus, the evidence contained in paragraph 30 of the Additional Written Statement on Oath of Elder Uzochi Okezie deposed 11th December 2017, being led on unpleaded facts in the Further Amended Statement of Defence, goes to no issue. The same thing is applicable to Exhibit D6 [the Police Investigation Report – Re: Case of Conspiracy and Stealing.” In essence, Exhibits D6 and D7 were pieces of evidence led on unpleaded facts and therefore go to no issue. They are accordingly discountenanced. In fact, with regard to Exhibit D6, the defendant pleaded clearly in paragraphs 10 and 13 of its Further Amended Statement of Defence that, the police is yet to complete its investigations into the matter. This piece of averment was replicated in paragraphs 10 and 13 of the Further Written Statement on Oath of Elder Uzochi Okezie. One wonders how the defendant came about the Police Investigation Report. Even if there were any contrary pleading and evidence hitherto – see paragraphs 29 of the Amended Statement of Defence and 30 of the Additional Written Statement on Oath of Elder Uzochi Okezie; they amount to virtually irreconcilable positions on the same issue and facts and the two different pieces of evidence led in the two different written depositions of DW1 make the evidence of DW1 highly irreconcilable and contradictory on a material fact hence, the Court is bound to disbelieve both – see Digest of Judgments of the Supreme Court of Nigeria, Volume 2, [supra] p. 95, para. 1096 & 1097.
Even assuming that, the reference made to the Amended Statement of Defence, which pleaded the issue of dismissal at its paragraph 29 forms part of the pleading of the defendant. I am still of the firm conviction that, the fact that the claimant denied the service of this dismissal letter on him and cross-examined, through his counsel on this issue on 28/11/2018, puts on the defendant the need to prove service of same. I have checked the said Exhibit D7 by which the claimant was allegedly dismissed; I couldn’t find anything that signified the claimant’s receipt of the letter on the body of the letter. Be that as it may.
Paragraph 30 of the Additional Written Statement on Oath of Elder Uzochi Okezie, which is the evidence on this issue, states, “…the dismissal letter dated the 22nd day of February 2017 served on him by one Elder Uzochi Okezie…” Apart from deposing to this very fact in reported speech of third person, which means the said DW1 was not the one that served the letter, the means of proving service therein is highly inchoate and falls short of the standard to induce belief. The means by which this service was effected was not stated and the circumstances of the service and the date of service. A Court is not bound to believe a piece of evidence simply because it was made under oath. A court will still disbelieve evidence made under oath, as in this case, even if not challenged, if it lacks all traces of cogency and rationality. And what is more, this evidence was resisted in paragraph 28 of the Reply to the Amended Statement of Defence and challenged in paragraph 28 of the Further Written Deposition of Mr Ignatius Akuwara, which was struck out on 14th May 2018 on the application of the learned counsel to the claimant.
I am of the firm conviction that, this is the reason why the learned counsel to the defendant, in spite of not raising this issue in the Further Amended Statement of Defence, is now raising it in the final address, to steal a show on the claimant. The Court cannot be taken in by such shenanigans. Once the abandoned Amended Statement of Defence is used for the defence then, equitably, the claimant’s Reply to Amended Statement of Defence and the struck-out Further Written Deposition of Mr. Ignatius Akuwara, must spring alive, to answer the call. In conclusion, I therefore hold that, the claimant has not been dismissed and that, the claimant is still very much in the service of the defendant. Having come to this conclusion, it is not necessary then, to examine the issue of whether or not because the claimant had not been tried at the law court, the defendant could not dismiss him on allegations of crimes. The issue has become academic in view of the fact that the platform under which it is brought has been removed underneath its foot. In effect, issue 2 is resolved against the defendant and in favour of the claimant. I move to issue 3 as formulated by the learned claimant’s counsel.
Issue 3 is related to: Whether the defendant can be compelled to write to IBTC pension to release or pay to the claimant the money referred to in paragraph 18 (d) of the claimant’s statement of fact? The defendant’s counsel submitted that, the defendant could not be compelled to write to the pension administrator to release the claimant’s pension to him more so, when the claimant himself had not approached the pension administrator, which would contact it. The claimant’s counsel submitted contrariwise that, the claimant could not access the pension because; the defendant had not formally disengaged the claimant. I have found and held that truly the defendant had not disengaged the claimant. I think it is axiomatic that pension is a post-service issue. Hence, common sense presupposes that, for the claimant, to process it, he must have in his possession, a terminal letter; and that, the defendant is under obligation to do everything in its duty to the claimant in that regard that, would enable the claimant access and possess his pension.
It is a point of consensus between the parties that, both sides, are no longer desirous, to continue with the contract. The defendant had expressed its desire to terminate the employment by the alleged and inexistent letter of dismissal and the claimant had expressed his readiness to leave the employment but insists on proper termination. It would appear too, that the defendant is not contesting the claimant’s entitlement to pension – see paragraphs 14, 15, 17 of the Further Amended Statement of Defence, notwithstanding the ambiguous and seemingly inconsistent plea in the subsequent paragraph 18. Having held that, the claimant is still in the service of the defendant, albeit, on indefinite suspension without pay, it follows that, the claimant must be issued a formal letter of disengagement. Since the defendant concedes the claimant’s entitlement to pension, it has conceded that it is not dismissing him. Hence, it could only terminate the appointment of the claimant for services no longer required without more. It cannot dismiss the claimant. This is more so because, the claimant had not been formally tried by the defendant in accordance with the grievance procedures outlined in 140.40 (1), (2), (3) of or in 140.15 (1)-(4) of the handbook. In like manner, the last paragraph of the letter of appointment becomes germane. It provides thus:
“You are expected to give one month notice or pay one month salary in lieu of notice, incase of resignation or abandonment. Also the Management will give one month notice or pay you one month salary in lieu of notice for termination of appointment or relief of duty.”
The above clearly provides that, an employee is entitled to a month notice or salary in lieu thereof if s/he is to relieved of his or her employment. Hence, since the claimant had not to be dismissed and it has equally been held that, there is no police investigation report in sight. It follows that the defendant can only lawfully terminate the appointment of the claimant in the instant case, and not dismissal. The claimant cannot wait perpetually for a police report that would set in motion the procedure for his dismissal or exoneration. The claimant should be issued a letter of termination for services no longer required with payment of one-month salary in lieu of notice, as contained in the letter of appointment.
Before I sign off, let me comment on some minor issues. The first is the case of Ekwere & Anor v. Government of Imo State & Ors [supra] cited by the learned counsel to the defendant. I decided this case. It has nothing to do with the facts of the extant suit. It was cited out of contest. The simple issue, in this case, was whether the claimant was entitled to be paid, during suspension; and not whether, he had been terminated. The issue of dismissal raised is in the instant occasion is just peripheral and did diminish from the central issue of whether the claimant was entitled to payment for the period of suspension. A case is only an authority for the facts and issues decided. The facts of this case and the issues are diametrically different from those of the case cited out of context.
The second is the recriminations and counter-recriminations on the difference between the names by which counsel was called to Bar and the one by which processes were franked and so on and so forth. These objections and counter objections or arguments are totally misplaced. I will not go too far into their niceties. It is sufficient for me to say that, these are not issues that are to be raised and canvassed at the final address stage. They are issues that must be raised timeously and set down for hearing timeously before the case proceeded on trial and conclusion of evidence. Once, the case is set down for judgment it would be too late, to raise such. This is because; such issues do not affect the substantive jurisdiction of the Court, but are just procedural. In Oluchi J. Anwoko v. Chief (Mrs.) Christy O.N. Okoye & Ors. in Suit No. 153/2005 [delivered January 22, 2010] and reported by TheGuardian at guardian.ng – by Google, the Supreme Court expatiated on similar issue, where an originating summons was not signed by the registrar, as enjoined by the rules of the Federal Capital Territory High Court and objection was raised after the defendant/appellant had filed her counter affidavit; and held:
“The jurisdiction of a court donated either by the constitution or by statute remains unaffected by breaches of rules of court. The sustained challenge of this issue of jurisdiction founded on the breach of Order 6 Rules 8 of the Federal Capital Territory High Court Rules was, with respect, grossly misplaced, not worth the time and trouble of the court and even counsel for the parties.
The second issue pertains to whether the appellant was precluded from raising the preliminary objection in view of the steps he had taken in the proceedings by filing a counter-affidavit and a further affidavit. As I have held earlier on in this judgment, the jurisdiction of the court to hear and determine the suit remains intact notwithstanding the breaches of Order 6 of the Rules. On this issue, the Court of Appeal reasoned:
‘The practice is that where a party has become aware of non-compliance, or where a writ is defective, he should apply for striking out of same before taking any further steps in the proceedings. Otherwise, he will be estopped from raising the issue of defect.’
I do not think I have any reason to impugn the findings and conclusions of the two courts below which I, therefore, also endorse. This issue is, therefore, also resolved in favour of the respondents.”
The decision of the Supreme Court in the above case had been adopted completely and reiterated by the Supreme Court in its more recent decision in Oliyide & Sons Ltd v. OAU, Ile-Ife (2018) LPELR-43711 (SC) 22-28, A-C. I hold, by virtue of these authorities that, it is too late in the day to seek to impugn the processes in this suit, by reason of non-compliance with the rules of the Professional Conduct of legal practitioners. The parties in a case cannot be made to suffer the blunders of lawyers, even if there is any, when it is no longer possible to remedy the situation. The rules of professional conducts for lawyers never envisaged that parties’ cases would be destroyed just because the processes were wrongly franked. That is why, if such objections are raised timely, they must be set down timeously too to enable the other side to remedy the situation or the Court to make a decision, and if the objection is upheld, to enable the affected party to take the necessary steps to remedy his case. So, in effect, the objections are misplaced and therefore, dismissed in their totality.
The third issue is the date the suspension letter was served on the claimant. The defendant had asserted that it was served on the date written on it while the claimant resists this. I am inclined to give more credibility to the version of the claimant that, he was served 4th December 2013 because, this assertion is backed up by cogent evidence that, the service was effected on him after he came back from police detention for interrogation – see paragraph 8 of the Further Written Deposition of Mr. Ignatius Akuwara to the Further Amendment of Statement of Defendant. And the defendant has not said it served the suspension letter on him when he was in the police custody.
The fourth issue is that of deduction of tithes from the salaries of the claimant. I hold that this is totally unlawful. It amounts to infringement of the religious freedom of the claimant as guaranteed by section 38(1) of the 1999 Constitution. An employer cannot assist an employee to spend his salaries or dictate to him how to spend his salaries. To deduct tithe upfront is to dictate to the employee how to spend his salary or to assist him to spend his salaries. It is classic example of unfair labour practice. It is hereby declared unlawful and any provisions of the contract that contain the enabling clause for the defendant to deduct tithes from salaries of its workers are hereby struck down as illegal, unlawful and unconstitutional – Digest of Judgments of the Supreme Court of Nigeria, Vol. 1 [supra], pp. 86-87, paras. 965-976. I declare them null and void. Religious freedom presupposes that, the adherents of such faith must retain their freedom to tithe. Tithing is between them and their God and not to be enforced as immutable law in a contract.
The fifth is in relations to the claims of the claimant in relief i.-iii. of paragraph 16 of the Statement of Facts. I found that, apart from just saying that the N39,640.00 claimed as monthly salary, is not correct, by virtue of being the gross salary and that, his net salary is smaller, after the deductions of tax and other deductions, the defendant did not specifically deny any of these averments or the rest of the paragraph. But I would not touch the others because; I have held that, the claimant is not entitled to salaries and allowances during the period of suspension. Relief 16(iv) has been granted in a way, by the holding that, the claimant is entitled to one-month salary in lieu of notice. In any case, claimant was suspended on 4th December 2013 when he received the suspension letter and could not have been entitled to the full month salary, except for payment in lieu of notice ordered. I will only deal with the pre-suspension salaries.
In fact, the defendant responded to these reliefs specifically in paragraph 16 of the Further Amended Statement of Defence by saying it is not indebted to the claimant as per paragraph 16 (i) to (ix) or at all and would put the claimant to the strictest proof. The implication of not denying the claims in i.-iii. of paragraph 16 each specifically, is admission – see p. 243, para. 2850 of Digest of Judgments of the Supreme Court of Nigeria, Volumes 1 [supra]. The claimant is therefore, entitled to these claims.
I have dealt with all issues that arose in this case. I found for the claimants in some of the issues. The claimants must therefore be entitled to some reliefs or remedies. It is therefore fitting for the case to come to conclusion by making the necessary orders and granting the necessary reliefs. I proceed now to do exactly that.
CONCLUSION
I hereby declare and order as follows that:
The claimant remained an employee of the defendant till today, at the determination of this suit but he is not entitled to payment of any salaries and allowances from the date of the indefinite suspension: that is, 4th December 2013.
The claimant should be issued with letter of termination of appointment, so headed and worded; and not letter of dismissal.
The claimant should be paid one-month salary in lieu of notice.
The defendant shall cooperate with the claimant to process his terminal entitlements [pension] with the IBTC Pension, which covers the period from employment till the letter of suspension was served on the claimant on 4th December 2013.
Tithes shall not be deducted from the salaries and allowances due to the claimant.
The claimant shall be paid his 2013 salary arrears of N25,600.00; 2013 leave allowance of N30,720.00 and November salary of 39,640.00, as contained in paragraph 16(i), (ii) & (iii) of the Statement of Facts, after deduction of tax and other allowances, except tithes.
All other reliefs not stated abovein are hereby refused.
I award no cost: both parties to bear their respective costs. This is the judgment of the Court.
Judgment is entered accordingly.
…………………………..
HON. JUSTICE O.O. AROWOSEGBE
JUDGE
NATIONAL INDUSTRIAL COURT OF NIGERIA
