MR. OSAMATA MACAULAY ADEKUNLE v. UNITED BANK FOR AFRICA PLC (2016)

MR. OSAMATA MACAULAY ADEKUNLE v. UNITED BANK FOR AFRICA PLC

(2016)LCN/8548(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/IB/437/2014

RATIO

APPEAL: WHAT IS THE DUTY OF A RESPONDENT IN AN APPEAL
Now, it is settled law that the recognized or traditional duty or role of a Respondent in an appeal is to defend the judgment and not to criticize or attack same, Thus, if a Respondent desires or wishes to attack the judgment, it will be incumbent upon him to file a cross-appeal’ He may also contend that the judgment be affirmed on other grounds other than that or those relied upon by the trial Court. See Ifegwu v. U.B.N. (2011) 16 NWLR (Pt.1274) p.555; Eliochin (Nig.) Ltd v. Mbadiwe (1986) 5 NWLR (pt.122) p.377 and Obi v. I.N.E.C. (2007) 11 NWLR (Pt.1046) p.565. PER HARUNA SIMON TSAMMANI, J.C.A.
LABOUR LAW: PARTIES TO A CONTRACT OF EMPLOYMENT
Generally, a contract of employment is an agreement between an employer and employee whereby the terms and conditions of employment are stipulated. See Union Bank of Nigeria Ltd v. Edit (1993) 4 NWLR (Pt.287) p.288. PER HARUNA SIMON TSAMMANI, J.C.A.
LABOUR LAW: CATEGORIES OF A CONTRACT OF EMPLOYMENT
A contract of employment can be divided into two broad categories. The first is the common law ordinary relationship of master and servant with its peculiar incidents. The second is a contract in which the tenure of the employee is protected in one form or the other by a statute. This type of contract of employment enjoys what is called; statutory flavor. Under the first category is the common law contract whereby either of the parties can abrogate the contract on a week’s or month’s notice, or upon payment of wages in lieu of such notice. There is that employment whereby there is a written contract of employment between the employer and employee. Again under the common law ordinary mode of employment, the contract is basically oral, but where the contract is reduced into writing, the Courts are enjoined to determine the rights, duties and obligations of the parties by reference to the written agreement only. PER HARUNA SIMON TSAMMANI, J.C.A.
JUDGMENT: MEANING AND NATURE OF A CONSEQUENTIAL ORDER
In law, a consequential order is one which flows naturally from and gives consistency and effect to the main judgment. A consequential order is therefore one flowing directly, naturally and inevitably consequent upon a judgment. Such order must give effect to the judgment already given and not grant a fresh and unclaimed or unproven relief. See Osuji v. Ekeocha (2009) 16 NWLR (pt.1666) p.81; Unity Bank Plc v. Denclag Limited (2012) 18 NWLR (pt.1332) p.293; Dingyadi v. I.N.E.C. (No.2) (2011) 18 NWLR (pt.1224) p.154; O.S.I.E.C. v. A.C. (2010) 19 NWLR (pt.1226) p.273. Thus, My Lord, I. T. Muhammad, JSC in the case of Ishola v. Folorunso (2010) 13 NWLR (Pt.1210) p.169 at 192 Paragraphs G – H succinctly stated the law as follows:
“It is clear from the submissions of learned counsel for the Appellants’ main complaint in their issue No.1 is that the Court below failed to make any consequential order apart from the award of costs. My understanding of a consequential order is that it is that order which gives effect to a judgment or order to which it is consequential. It is directly traceable to or flowing from that other judgment or order duly prayed for and made consequent upon the reliefs claimed by the Plaintiff.”
My understanding of the law as stated above is that, a consequential order is one which has not been specifically sought or prayed as a substantive claim or relief. Accordingly, where an order or relief has been specifically and distinctly prayed for, it has to be independently proved before it can be granted. A consequential relief is an order which is an appendage or dependent upon a main or principal relief, made for the purpose of giving effect to than main relief. PER HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES:

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

MR. OSAMATA MACAULAY ADEKUNLE – Appellant(s)

AND

UNITED BANK FOR AFRICA PLC – Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Industrial Court of Nigeria, sitting at Ibadan delivered by B.B. Kanyip; J on the 10th day of July, 2014.

Before the Court below, the Appellant who was the claimant took out a General Form of Complaint dated and filed the 30/5/2012 according to the rules of that Court, wherein by Paragraph 34 of the Statement of Facts sought the following reliefs:
1. A DECLARATION that the indefinite suspension of the claimant is unconstitutional, illegal, contrary to the rules of natural justice, equity and good conscience and therefore null and void and of no effect whatsoever.
2. A DECLARATION that the said indefinite suspension of the claimant was unlawful, wrongful and done in flagrant breach of the defendant’s company Policies and Procedures as contained in the UBA Employee Handbook.
3. A DECLARATION that the claimant is still in the employment of the Defendant and is entitled to all his just entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office.
4. AN ORDER setting aside, invalidating and

making void the said indefinite suspension of the Claimant.
5. AN ORDER reinstating the Claimant to his employment in the defendants company without any loss of seniority and commensurate entitlements, salaries, allowance, bonuses, emoluments and/or other perquisites of office, from the time of his unlawful and inequitable suspension.
6. AN ORDER directing the Defendant to pay over to the Claimant all his allowances, bonuses, emoluments and other perquisites of office, from the time of his purported indefinite suspension until his full reinstatement and thereafter.
7. AN ORDER awarding 35% pre-judgment and 10% post-judgment interest on the Claimant’s entitlements, emoluments, allowances, salaries, bonuses, etc.
8. AN ORDER awarding the sum of N10,000,000.00 (Ten Million Naira) only as general damages to the claimant for the unlawful, unconstitutional and unconscionable indefinite suspension and the attendant psychological and emotional trauma which the claimant was made to suffer.
9. AN ORDER granting any other relief(s) that the Court may find the Claimant entitled to ex debito justitae (sic)
10. The cost of this

avoidable but provoked action.

The case of the Appellant is that, he was employed by the Respondent as a Bulk Teller in February, 2007 at its Ilorin 2 Branch, Murtala Mohammed Way, Challenge, Ilorin. That he applied for and was subsequently offered appointment as an Executive Trainee with the Respondent on the 23/11/20007, which he validly and duly accepted. That, due to his dutiful, diligent and satisfactory performance, his appointment was confirmed vide letter of “Confirmation of Appointment” dated the 17/4/2009. That by the said letter of 17/4/2009, he became a full time employee of the Respondent on the payroll of the Respondent, entitled to all rights of an employee, such as salaries, allowances, benefits, bonuses and other perquisites of office. Furthermore, that such employment was governed by the Rules, Policies and procedure as contained in the UBA Employee Handbook.

It is also the case of the Appellant that in September, 2009, the duo of Kabir Abdulazeez and Mudasiru Kolawole Muritala who were custodians of the ATM at the Ilorin 1 Business office were alleged to have been involved in an ATM fraud of One Million, One Hundred Thousand Naira

(N1.1 million) only. That, at the time of the alleged fraud, (Appellant) was the Operation Manager at that Branch, and had the duty of supervising the ATM custodians. That, he, along with the ATM custodians were queried on their involvement in the fraud and subsequently appeared before a Disciplinary Committee set up by the Respondent on the 17/10/2009, and that he declared his innocence before the committee. That, both Kabir Abdulazeez and Mudasiru, the ATM Custodians were found guilty and made to resign their appointments with the Respondent. According to the Appellant, he waited for the Respondent to recall and reinstate him and also made several efforts to know his status with the Respondent without any success. The Appellant therefore contended that, the result is that, he was on suspension for several months without pay whereof he caused his counsel to write the Respondent vide Exhibit “F” to which the Respondent replied vide Exhibit “G”. Furthermore, that when the Respondent again failed to act, he again caused his solicitor to write Exhibit. “H” but the Respondent ignored the said Exhibit “H”. In the circumstances, he caused his solicitor to institute

the action which is the subject of this appeal.

The case of the Respondent (as Defendant) at the Court below is that, the Appellant was offered employment as an Executive Trainee vide letter dated the 26/11/2007, and which employment was confirmed vide “Letter of Confirmation” dated 17/4/2009. That in September, 2009, the Business Operation Manager (BOM) of the Ilorin 1 Business office where the Appellant, worked made a report that a sum of One Million, One Hundred Thousand Naira Only (N1,100,000.00) was stolen from the ATM machine of that Ilorin 1 Business Office. That, at the time of the theft, the Appellant was the Customer Service Officer charged with the duty of monitoring and supervising the ATM custodians. That, when questioned, the ATM custodian indicted the Appellant who had direct supervisory role over him, and three other staff; and that the case against the Appellant is that, he took a loan of N400,000.00 from the amount stolen from the ATM machine, knowing that the said money was stolen. That, by so doing, the Appellant compromised his supervisory role over the ATM custodian, and thus jeopardized the interest of the Respondent for his

personal benefit; and that such conduct was considered as a gross misconduct capable of ending the employment of the Appellant with the Respondent.

The Respondent therefore stated that, a Disciplinary Committee was set up, and that the committee invited the Appellant and others involved in the fraud. That, the Disciplinary Committee sat at the Respondent’s regional head office at Ibadan on the 16/10/2009. That, the Appellant did not proffer any reasonable defence against the allegation against him, but confirmed that he took the loan from the proceeds of the theft from the ATM knowing same to be from the proceeds of the theft. That, at the conclusion of its investigation, the Disciplinary Committee recommended for the dismissal of the Appellant from the employment of the Respondent, and the Appellant was duly and validly dismissed vide “Letter of Dismissal” dated the 02/12/2009.

At the trial, the parties called a witness each. The Appellant as claimant testified for himself and tendered several exhibits, while the Respondent presented her case through one Adeola Adefila, a Human Resources Business Partner at the Respondent’s Regional office at

Ibadan, and also tendered some Exhibits. At the close of evidence, the parties filed and served written addresses as required by the Rules of the trial Court. Accordingly in a considered judgment delivered on the 10th day of July, 2014, the learned trial Judge gave judgment for the Appellant in respect of relief 3 only. Being dissatisfied by the decision of the trial Court, the Appellant approached this Court by way of an appeal.

The Notice of Appeal which can be found at pages 209-214 of the Record of Appeal was dated and filed on the 16/7/2014. The Notice of Appeal consists of four (4) Grounds of Appeal, but time and the need for brevity would not permit me to reproduce same here. The parties complied with the Rules of this Court by filing Briefs of Arguments, which the parties adopted and relied upon as their arguments in this appeal, at the hearing on the 03/2/2016. The Appellant’s Brief of Arguments was dated and filed on the 21/10/2014. Therein, two issues were formulated for determination as follows:
1. Whether the learned trial Judge was not wrong to have refused to make a consequential order directing the respondent to pay the appellant’s

entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office having regard to the fact that he had earlier made declarations in his favour thereby denying him his fundamental right to his property and fruit of judgment delivered in his favour.
2. Whether the learned trial Judge was not wrong to have suo motu terminated the appointment of the Appellant with the Respondent having regard to the fact that he had earlier made a declaration that the Appellant is still in the employment of the Respondent and when there is no instrument or document from the Respondent terminating the Appellant’s employment with the Respondent.

The Respondent’s Brief of Arguments is the Amended Respondent’s Brief of Arguments dated and filed on the 12/10/2015. It was deemed filed on the 11/11/2015. Therein two issues were also formulated for determination, as follows:
1. Considering the fact that the Appellant never pleaded what his emolument was as at the time he was suspended by the Respondent nor give any particular evidence of the said emolument, can it be said that the Learned Trial Judge erred in law when His Lordship held that the

Appellant did not particularize or prove same?
2. In the entire circumstances of this suit, can it be legally and equitably contended that the failure of the Learned Trial Judge to order that the Appellant be paid his entitlements as claimed by him does not accord with the justice of this suit?

Upon being served the Amended Respondent’s Brief of Arguments, the Appellant filed a Reply Brief on points of law. It was dated and filed on the 05/1/2016 but deemed filed the 21/1/2016.

I have carefully studied the Grounds of Appeal and the issues formulated by the parties. Having thus considered, I am of the view that the issues raised by the Appellant have adequately and aptly captured the essence of this appeal. In that respect, this appeal shall be determined on the issues formulated by the Appellant. In the determination of the appeal, I shall begin with issue two (2).

Now, in arguing issue two (2), Mr. Yakub Dauda of learned counsel for the Appellant contended that, the issue questions the vires of the trial Court to terminate the employment of the Appellant with the Respondent. It was further contended that, the learned trial Judge had found

that there is no document emanating from the Respondent showing that the Appellant’s employment had been terminated or dismissed when it made the declaration that the Appellant remained an employee of the Respondent from the 17/9/2009 when he was suspended till the date of judgment. Learned Counsel then submitted that, in the absence of any document terminating or dismissing the employment of the Appellant with the Respondent, the learned trial Judge lacked the vires to hold that the employment of the Appellant with the Respondent subsisted from the time of his suspension till the date of the judgment.

It was further contended by learned counsel for the Appellant that, the learned trial Judge based its decision on the premise that, the Respondent having suspended the Appellant since September, 2009 had evinced an intention to repudiate the contract of employment of the Appellant, but effective from the date of the judgment. It was therefore submitted that, the relationship between the Appellant and the Respondent is contractual in nature, and that from the documents before the Court, the parties had drawn out how the relationship could be brought to an

end. That it does not involve the Court. That the document which provides the mode by which the Appellant’s appointment could be terminated, is Exhibit B (the letter of offer of employment). That, nowhere in the said Exhibit B is it written that the Court can terminate the appointment of the Appellant with the Respondent. Furthermore, that having made declaration that the Appellant remained an employee of the Respondent from the date he was suspended; the Court had no vires to proceed to declare that such employment terminated on the date of judgment. That the learned trial Judge in making his findings ought to have stopped at declaring that the Appellant remained on the employment of the Respondent. The case of British Airways v. Makanjuola (1993) 8 NWLR (Pt.311) p.276 at 279 was cited to submit that by so declaring, the learned trial Judge read into Exhibit B, a term that is not there.

Learned Counsel for the Appellant submitted on another wicket that, the learned trial Judge based its decision that the employment of the Appellant with the Respondent subsisted till the date of its judgment, on speculation and not on any proved fact. He then cited the

cases of Agip (Nig) Ltd v. Agip Petroli Int. (2000) All FWLR p.1198 – 1249 Paragraphs A – C and Olufeagba v. Abdur-raheem (2010) All FWLR (Pt.512) p.1033 at 1074 Paragraph C, to submit that the findings of the trial Court was premised on speculation, which should not be allowed. We were accordingly urged to resolve this issue in favour of the Appellant.

I have also read the issues as formulated by the Respondent. I notice that non of the issues formulated by the Respondent is synonymous with the issues raised by the Appellant. That is why that issue has been heavily attacked by the Appellant in the Appellant’s Reply Brief. Accordingly, I find it necessary to consider the competence of that issue and the arguments thereon as put forward by the Respondent, before I proceed to a resolution of issue two (2) formulated by the Appellant.

Replying on issue 2 under consideration, learned counsel for the Appellant contended in Paragraph 101 of the Consequential Amended Appellant’s Reply Brief of Argument, that the arguments of the Respondents on their issue 2 have been used to attack the findings of the trial Court, while some of the arguments

ought to be canvassed in the cross-appeal and not in the Respondent’s brief of arguments under consideration. Specifically at Paragraphs 3.01-3 .07 of the said Reply Brief of Argument, learned counsel for the Respondent appears to have completely misunderstood the decision of the trial Court being appealed against by the Appellant. That, the Respondent has not appreciated that, it is not the whole decision of the trial Court that is being appealed but only part of the judgment findings on:
(a) The failure of the trial Court to make a consequential order for the payment of the Appellant’s salaries and other emoluments.
(b) That aspect of the judgment which limited the period from which the Appellant remained in the employment of the Respondent to between 17/9/2009 when he was suspended, to the date of judgment.

Learned counsel for the Appellant then contended that, those aspects of the judgment are covered by the four (4) grounds of appeal filed by the Appellant, and that the issue 2 raised by the Respondent failed to address the issues raised by those grounds of appeal. That, instead of addressing the issue raised by the Appellant, the

Respondent busied himself arguing that the Appellant committed crimes, which did not form part of the findings of the trial Court. The cases of Okoro v. Egbuoh (2006) All FWLR (Pt.332) p.1569 and Emeka v. Okadigbo & Ors (2012) LPELR 9338 (SC) were then cited to urge us to discountenance and strike out all the arguments of the Respondent on issue two (2) as the arguments canvassed therein are not defending the trial Court’s judgment but rather attacking or criticizing same; contrary to the duty of a Respondent in an appeal.

Now, it is settled law that the recognized or traditional duty or role of a Respondent in an appeal is to defend the judgment and not to criticize or attack same, Thus, if a Respondent desires or wishes to attack the judgment, it will be incumbent upon him to file a cross-appeal’ He may also contend that the judgment be affirmed on other grounds other than that or those relied upon by the trial Court. See Ifegwu v. U.B.N. (2011) 16 NWLR (Pt.1274) p.555; Eliochin (Nig.) Ltd v. Mbadiwe (1986) 5 NWLR (pt.122) p.377 and Obi v. I.N.E.C. (2007) 11 NWLR (Pt.1046) p.565.

That being so, a Respondent who has neither filed a

cross-appeal nor a Respondent’s Notice to affirm the decision on appeal on other grounds, is precluded from attacking, criticizing or questioning that decision. In the instant case, the submissions of learned counsel for the Respondent in Paragraphs 5.1-5.16 of the Amended Respondent’s Brief of Arguments do not respond to the issue(s) canvassed by the Appellant in any of the two issues in the Appellant’s brief of Arguments. In my view the arguments of the Respondent therein merely provide alternative reasons why the decision of the trial Court should be affirmed. Since the learned trial Judge did not present the issues as canvassed by the Respondent as reasons for his decision, such reasons cannot be legitimately canvassed by the Respondent. That is more so when the Respondent has not filed any Respondent’s Notice so as to enable him contend that the decision be affirmed on other grounds other than that or those relied upon by the trial Court.

It is conceded that the Respondent has filed a Cross-Appeal. However, the Respondent cannot use her cross-appeal as a tool for canvassing issues in a Respondent’s brief which can only be canvassed in the

Cross-Appellant’s Brief of Arguments. At Paragraphs 5.17 – 5.21 of the Respondent’s Brief of Arguments, learned counsel for the Appellant attacked the finding of the learned trial Judge. Surely, that is not the duty or function of a Respondent who has the role of defending the judgment appealed against. He could only attack such finding by way of a cross-appeal. I also, find that Paragraphs 5.22 – 5.41 of the Respondent’s Brief of Arguments was in no way answering to the issues raised by the Appellant. The issues were also not raised by any of the four (4) Grounds of Appeal. It is the law that issues for determination and the arguments in support thereof must take root from the ground(s) of appeal. In other words, issues for determination must arise from the Grounds of Appeal. According, any issue which does not arise from a Ground of Appeal is incompetent and must be jettisoned. In the instant case, it is apparent that issue two (2) as formulated by the Respondent was craftily drafted in such a way as to bring in arguments not related to any of the grounds of Appeal. I therefore, agree with learned counsel for the Appellant that issue two raised by the

Respondent and the arguments presented thereon are incompetent. They are hereby discountenanced as being irrelevant being extraneous to the issues arising from this appeal.

Now, in resolving issue two as formulated and argued by learned counsel for the Appellant, I find it incumbent to state the decision or that part of the finding of the trial Court appealed against. Before I do that, I wish to remind myself that, the complaint of the Appellant here is that, the learned trial Judge erred when he found and held that, the employment of the Appellant with the Respondent subsisted from the 17/9/2009 being the date he was suspended to the date of the judgment appealed against.

That the trial Court had no jurisdiction or vires to make such finding. In its findings on the issue that led to this appeal, the trial Court had held in the last paragraph of page 206 of the Records that:
“Having found and held that the suspension of the Claimant is subsisting and hence indefinite, it remains to consider the legal consequences of the suspension and hence rights of the Claimant.”

The trial Court then concluded at page 207 of the Records as follows:<br< p=””>

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“The Claimant in the instant case has been suspended since September 17, 2009. On the authority of Olafimihan v. Nova Lay-Tech. Nig. Ltd and Lasisi Gbadegesin v. Wema Bank Plc all (supra), the suspension of the Claimant since September 17, 2009 must, therefore, be read as evincing an intention to repudiate the contract of employment of the Claimant by the Defendant but effective only from the date of this judgment. This means that the Claimant is entitled to be paid the backlog of his salary and allowances together with all other entitlements that go with repudiation of the employment, less whatever indebtedness the Claimant may have to the Defendant. The Defendant had, however abandoned its counterclaim. This means that, of the reliefs claimed, the Claimant is entitled to only the declaration that he remained an employee of the Defendant only up to the date of this judgment; and accordingly is entitled to the declaration that he is entitled to “all his entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office” from September 17, 2009 when he was suspended to the date of this judgment. Since these “entitlements, salaries,

allowances, bonuses, emoluments and other perquisites of office” have not been particularized ‘and proved, this Court cannot make any consequential order as to their payments.”

Generally, a contract of employment is an agreement between an employer and employee whereby the terms and conditions of employment are stipulated. See Union Bank of Nigeria Ltd v. Edit (1993) 4 NWLR (Pt.287) p.288.

A contract of employment can be divided into two broad categories. The first is the common law ordinary relationship of master and servant with its peculiar incidents. The second is a contract in which the tenure of the employee is protected in one form or the other by a statute. This type of contract of employment enjoys what is called; statutory flavor. Under the first category is the common law contract whereby either of the parties can abrogate the contract on a week’s or month’s notice, or upon payment of wages in lieu of such notice. There is that employment whereby there is a written contract of employment between the employer and employee. Again under the common law ordinary mode of employment, the contract is basically oral, but where the contract is reduced

into writing, the Courts are enjoined to determine the rights, duties and obligations of the parties by reference to the written agreement only.

In the instant case, it is very clear from the pleadings and evidence led by the parties, that the employer/employee relationship between the Respondent and the Appellant was in writing. See Paragraphs 7 and 12 of the Statement of Facts and Paragraphs 5 and 10 of the Written Statement on Oath of the Claimant. See also Paragraphs 3(i) and (iii) and 5 – 6 of the Defendant’s Written Witness Statement on Oath. I wish to restate that, in an employer/employee dispute, it is the applicable conditions of service or any, other terms stipulated in the contract that must be referred to, construed and applied in the resolution of the dispute between the parties. Accordingly, the conditions of service is the bedrock of the contract of employment. It therefore means that, where there are documents or series of documents which stipulate the terms and conditions of any employment contract, no Court should look outside those terms and conditions as stipulated in the document in deciding the rights and obligations of the parties

to the agreement. See Jowan & 77 Ors v. Delta Steel Company Ltd (2013) 1 A.C.E.L.R. P.18 and Mr. S. Anaja v. United Bank For Africa Plc (2014) A.C.E.L.R. p.78.

Now, the Appellant had pleaded in Paragraph 14 of the Statement of Facts that the employment is governed by all applicable rules of law, the Defendant’s policies and procedure as contained in the UBA Employee Handbook. His evidence is in line with the above pleading wherein he stated in Paragraph 13 of the Written Statement on Oath that:
“13. That I know as a fact that my employment is governed by all applicable rules of law, the Defendant’s policies and procedure as contained in the UBA Employee Handbook.”

In the resolution of the issues before him, the learned trial Judge found that no such condition of service was either frontloaded or tendered by the Appellant, so as to enable the Court determine the legality or otherwise of the Appellant’s suspension. Specifically, he found that, the “UBA Employee Handbook” Upon which the Appellant based his claim was not frontloaded. The only documents which the learned trial Judge could have used to determine the issue of suspension of the

Appellant, being Exhibits D3, D4 and D5 were discountenanced by the trial Court. In that respect, there was nothing else upon which the Court could use to gauge the issue of suspension, that is, whether it was a suspension for a definite period or indefinite. There is no appeal against such finding by the Appellant. However, the learned trial Judge found that in the absence of such document(s), the suspension transmuted to an indefinite one.

It would be seen therefore that the learned trial Judge did not state the parameters upon which he reached the conclusion that the suspension was an indefinite one. It should be noted that the burden was on the Appellant, as Claimant, to prove that he was suspended and that his suspension was an indefinite one. This is more so when there are facts pleaded by the Respondent which contradict the findings of the learned trial Judge. It is therefore my view, which I hold that the finding of the learned trial Judge that the suspension of the Appellant was indefinite was based on speculation. There are no facts to support such finding. This is more so when the Respondent’s witness led oral evidence to the effect that the

suspension of the Appellant was pending investigation, and that a Disciplinary Committee was indeed set up by the Respondent. Furthermore, that the Committee heard the Appellant and later on turned in a Report. Despite the rejection of Exhibits D3, 4 and 5 by the learned trial Judge, the Appellant did plead and gave evidence of the existence of that Disciplinary Committee; and that he appeared before the Committee.

From my findings above, it is clear to me that, the learned trial Judge erred when he found that the Appellant’s suspension was an indefinite one. Such finding was not based on any conclusive fact(s). It is that error that led the learned trial Judge to suo motu peg the period of suspension as lasting till the date of his judgment. Such finding was in my view, erroneous; it should be and is hereby set aside. For whatever it is worth, this issue is resolved in favour of the Appellant.

On issue one, learned counsel for the Appellant reproduced the reliefs granted by the learned trial Judge at page 183 of the record of appeal to contend that, the learned trial Judge having made the two declarations in favour of the Appellant, he ought to

have gone further to make a consequential order against the Respondent, directing it to pay the Appellants entitlements, salaries, emoluments, allowances, bonuses and other perquisites of office as claimed by the Appellant. That, indeed, the trial Court was duly bound to order the payment of same even if the Appellant did not ask for it, as such order would have flown directly from the declarations made in favour of the Appellant. That, instead of making such order, the trial Court made an order which completely detracted from the declarations made in favour of the Appellant. The case of Frederick Obayagbona & Anor v. Obazee & Anor (1972) 5 S.C. p.159 at 163 was cited in support. The case of Usibaifo v. Usibaifo (2005) 3 NWLR (pt.913) p.665 was also cited to further submit that, it was wrong for the trial Court to have made declarations in favour of the Appellant without making a consequential order that will give effect to the declarations.

Learned Counsel for the Appellant went on to submit that in justifying the reason for making a consequential order which detracted from the declarations earlier made by it, attributed same to the failure of

the Appellant to particularise or prove his entitlements, salaries, bonuses, allowances and perquisites of office. That in so deciding, the trial Court relied on the case of University of Jos v. Dr. M. C. Ikegwuoha (2013) 9 NWLR (pt.1360) p.478. Learned Counsel then submitted that, the case of; University of Jos (supra) does not apply to the case at hand. That in applying that case, the learned trial Judge misconstrued the guiding principle on the award of a consequential order in a given case. It was then submitted that, the misconception stemmed from the stance taken by the trial Court to the effect that, a party in whose favour a declaration has been made, still has a duty to prove the order flowing from the declaration, before such order could be made. That, a consequential order is that which gives effect to the judgment; in that it must flow from the judgment and therefore incidental to and flow directly and naturally from the relief(s) granted. The case of Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) p.423 was cited in support; and to further submit that, a Court has the inherent powers to make such consequential order in a deserving case. See also Eze v.

Gov, of Abia State (2014) 14 NWLR (pt.1426) p.192 at 218 – 219 Paragraphs G – H.

It was further contended by learned counsel for the Appellant that, by making a consequential order which completely detracts from the tenor of the main reliefs granted the Appellant, injustice was occasioned the Appellant. We were therefore urged to exercise the powers granted us by Section 15 of the Court of Appeal Act, to order and direct payment of the Appellant’s salaries, emoluments, allowances, bonuses and other perquisites office by the Respondent to the Appellant, as was done in Eze’s case(supra), from the 17th September, 2009 when he was suspended.

Learned Counsel for the Appellant submitted also that, the learned trial Judge erroneously held that the claim for salaries, allowances, etc, was in the realm of special damages which needed to be particularized. It was however submitted that, the Appellant having proved that he is still in the employment of the Respondent, is entitled to all the benefits that are accruable to him as an employee of the Respondent. Furthermore, that the trial Court having made declaration that the Appellant remained in the employment

of the Respondent ought to have ordered the payment of his salaries, allowances and other emoluments. The case of Olufeagba v. Abdulraheem (2010) All FMLR (Pt.512) p.1033 at 1057 – 1058 was cited in support.

Learned Counsel for the Appellant went on to submit that, assuming that the trial Court was right, that the Appellant had a duty to proof his salaries, allowances and other emoluments, there are sufficient evidence and documents before the Court, on which the Court could rely to order the payment of the Appellant’s emoluments, salaries, etc, especially when the Respondent had admitted to the Appellant’s salaries, allowances and other emoluments. We were in that respect, referred to Paragraph 4(ii) of the Amended statement of Defence. That, the Appellant’s salaries, allowances and other perquisites of office were clearly stated in the “Offer of Employment” admitted in evidence as Exhibits “B” and D1 respectively; and that same were affirmed by the Appellant and the Respondent’s witness, in their Written Statements on Oath, The case of Oyewole v. Akande (2009) 15 NWLR (pt.1163) p.119 at 148 was then cited to submit that, the learned trial

Judge ought to have relied on those documents in finding in favour of the Appellant. The cases of Oke v. Aiyedun (1986) 2 NWLR (Pt.23) p.548 and Jolasun v. Bamgboye (2010) 18 NWLR (Pt.1225) p.285 at 307 were further cited in urging us find in favour of the Appellant.

In response, Mr. Musibau Adetunbi of learned counsel for the Respondent submitted that, the learned trial Judge came to the right decision in refusing to order payment, because such claim cannot be supported by the pleadings and testimony of the Appellant in his Written Statement on Oath. Learned Counsel admitted that, the Appellant pleaded the letter of appointment as a means of establishing his employment with the Respondent; and that the said letter stated the annual remuneration of the Appellant as at the point of employment. That, the said letter Exhibit “B” was only tendered for the purposes of establishing the fact of such employment only, and therefore, cannot be used as prove of the Appellant’s remuneration as at the time material to the suit leading to this appeal. A Plethora of authorities such as Omega Bank (Nig.) Plc v. O.B.C. Ltd (2005) 8 NWLR (Pt.928) p.547 at 585 Paragraph C;

Ngwu v. Nnaji (1991) 5 NWLR (pt.189) p.18 at 30; Daggash v. Bulama (2004) All FWLR (pt.212) p.1666 at 1738; Ishola v. U.B.N. Ltd (2005) All FWLR (pt.256) p.1202 at 1213, etc were cited in support.

Learned Counsel for the Respondent went on to contend that, a look through the pleadings and written depositions of the Appellant show that the Appellant specifically pleaded the “Letter of Employment” as evidence of his employment with the Respondent. That the Appellant never pleaded what his remuneration was nor did he refer to the Letter of Employment” as the evidence of what his remuneration was at the time of instituting the action leading to this appeal. He then referred to Paragraph 7 of Statement of Facts to submit, that it is different where a document is put in evidence without any particular specification. It was further submitted that, it is not for the Court to search for the particulars of the Appellant’s remuneration as at the time the Respondent suspended him, in an annexture to a document pleaded as evidence of his employment. The cases of Action Congress of Nigeria v. Nyako (Pt.686) p.424 at 480 Paragraph H – 481 Paragraphs A – F and

Audu v. I.N.E.C. (No.2) (2010) 13 NWLR (Pt.1212) p.456 at 520 Paragraphs F – G were then cited in support. It was therefore submitted that, the Appellant never pleaded his remuneration there by leaving the trial Court in the wilderness as to what his remuneration was. We were therefore urged to resolve this issue against the Appellant.

Replying on points of law, learned counsel for the Appellant submitted that, the “Letter of Offer of Employment” is more than enough to let the trial Court understand what the remuneration of the Appellant is, because, apart from the fact that the said letter did not only state what the Appellant’s emoluments were, but gave a breakdown of his emoluments, That, the Respondent never denied any of the averments that bear relevance to the said letter, but also affirmed the authenticity of the letter by pleading same in Paragraph 4(ii) of the Amended Statement of Defence, and evidence thereon led by the Respondent’s witness.

Now, what is the finding of the learned trial Judge in respect of the Appellant’s claim for salaries, allowances and other remunerations? That finding is at page 208 of the record of appeal. Therein,

the learned trial Judge held that:
“Since these entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office” have not been particularized and proved, this Court cannot make any consequential order as to their payment.”

The learned trial Judge held as above after finding at pages 207 – 208 of the record of appeal as follows:
“This means that the Claimant is entitled to be paid the backlog of his salary and allowances together with all other entitlements that go with repudiation of the employment, less whatever indebtedness the Claimant may have to the Defendant. The Defendant had, however, abandoned its counterclaim. This means that, of the reliefs claimed, the Claimant is entitled to only the declaration that he remained an employee of the Defendant only up to the date of this judgment, and accordingly is entitled to the declaration that he is entitled to “all his entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office” from September 17, 2009 when he was suspended to the date of this judgment.”

Based on the above findings, the learned trial Judge declared as follows:
“1. That

the Claimant remained an employee of the defendant since September 17, 2009 when he was suspended up to the date of this judgment.
2. That the Claimant is entitled to “all his entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office” from September 17, 2009 when he was suspended to the date of this judgment.”
His Lordship however stressed the point that:
…since the Claimant’s “entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office” have not been proved before this Court, this Court cannot make any order in their regard.”

It is clear therefore that, while the learned trial Judge found and held that the Appellant is entitled to the declaration that he remained an employee of the Respondent from the 17th of September, 2009 when he was suspended to the date of judgment, he is also entitled to a declaration that he is entitled to his salaries, allowances and other emoluments for that period of suspension. The trial Judge however found that the Appellant did not prove the quantum of such salaries, allowances and other emoluments, as same were never particularized in the

Appellant’s pleadings nor evidence led thereon. I am of the view that to resolve the issue, it would be necessary to visit the pleadings in the Statement of Facts filed by the Appellant, and especially the reliefs claimed. The two reliefs in the form of declarations were pleaded as Paragraphs 34(iii) and (vi) of the Statement of Facts, which I endeavor to reproduce as follows:
“34(iii). A DECLARATION that the Claimant is still in the employment of the Defendant and is entitled to all his just emoluments, salaries, allowances, bonuses, emoluments and other perquisites of office.
(vi) AN ORDER directing tire Defendant to pay over to the Claimant all his just and commensurate entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office, from the time of his purported indefinite suspension until his full reinstatement and thereafter.”

A careful perusal of the reliefs granted the Appellant by the trial Court would show clearly that, only relief 34(iii) sought by the Appellant was granted. That relief is a principal relief, and relief 34(vi) if granted, would give effect to that relief, as it is trite law that, declaratory

reliefs are not executory. In other words, the grant of relief 34(vi) is dependent on the grant of relief 34(iii). The issue to be resolve now is whether relief 34(vi) is a consequential relief, grantable upon the grant of relief 34(iii). In that respect, I find it necessary at this juncture to consider the nature of a consequential relief or order.

In law, a consequential order is one which flows naturally from and gives consistency and effect to the main judgment. A consequential order is therefore one flowing directly, naturally and inevitably consequent upon a judgment. Such order must give effect to the judgment already given and not grant a fresh and unclaimed or unproven relief. See Osuji v. Ekeocha (2009) 16 NWLR (pt.1666) p.81; Unity Bank Plc v. Denclag Limited (2012) 18 NWLR (pt.1332) p.293; Dingyadi v. I.N.E.C. (No.2) (2011) 18 NWLR (pt.1224) p.154; O.S.I.E.C. v. A.C. (2010) 19 NWLR (pt.1226) p.273. Thus, My Lord, I. T. Muhammad, JSC in the case of Ishola v. Folorunso (2010) 13 NWLR (Pt.1210) p.169 at 192 Paragraphs G – H succinctly stated the law as follows:
“It is clear from the submissions of learned counsel for the Appellants’ main

complaint in their issue No.1 is that the Court below failed to make any consequential order apart from the award of costs. My understanding of a consequential order is that it is that order which gives effect to a judgment or order to which it is consequential. It is directly traceable to or flowing from that other judgment or order duly prayed for and made consequent upon the reliefs claimed by the Plaintiff.”
My understanding of the law as stated above is that, a consequential order is one which has not been specifically sought or prayed as a substantive claim or relief. Accordingly, where an order or relief has been specifically and distinctly prayed for, it has to be independently proved before it can be granted. A consequential relief is an order which is an appendage or dependent upon a main or principal relief, made for the purpose of giving effect to than main relief. In the instant case/ the claim that an order be made by the trial Court directing the Respondent to pay over to the Appellant all his just and commensurate entitlements, salaries, allowances, bonuses, emoluments and other perquisite of office, from the time of his purported

indefinite suspension until his full reinstatement is a specific and independent relief claimed by the Appellant. This claim, the learned trial Judge found that the Appellant has failed to prove. Such claim having been specifically made, cannot be the subject of a consequential order or relief. Being a substantive and independent claim, it had to be independently proved.

Now, the learned trial Judge found that, that relief, i.e, the relief or claim for the payment of salaries, allowances and other emoluments have to be specifically pleaded with particulars and evidence led thereon. The learned trial Judge then found that the pleadings in the Statement of facts were bereft of such particulars. The law is that, claims for salaries, allowances, bonuses, emoluments, etc are in the nature of special damages. Like in all claims for special damages, they need to be pleaded with particulars and evidence led thereon before they could be granted. In other words, such claims need be strictly proved. Thus, in the case of I.H.A.B.U.H.M.B. v. Anyip (2011) 12 NWLR (pt.1260) p.1 at pp.20 – 21 Paragraphs H – A, Chukwuma – Eneh, JSC in his contributory judgment held as

follows:
I must observe in regard to this matter that the Respondent with regard to her pleadings has neither pleaded satisfactorily her special damages to wit – the salaries, allowances and other benefits that is “accruable to her as pronounced by the Lower Court in its judgment nor have these items of special damages been specifically proved. None the less, the law is trite that unless pleaded and strictly proved, the Court is not obliged to make any awards in that regard for special damages. This aspect of the Lower Court’s judgment should be set aside and I so hold.”
In the case cited above, the Respondent upon dismissal from her employment by the Appellant had sought for the following relief; amongst others:
“Payment of all arrears of salaries, allowances, and other benefit to which the Plaintiff has been entitled from the 11th June, 1995, being the date of her interdiction from duty, until the determination of this suit.
That claim of the Respondent in that case would appear to be in pari materia with the Appellant’s claim subject of this appeal. It. is clear therefore, that the Appellant’s claim for salaries, allowances

and other perquisites of his employment are in the nature of special damages, which needed to be pleaded and specifically proved. In arriving at its decision in this case, the trial Court relied on the case of Unijos v. Ikegwuoha (2013) 9 NWLR (Pt.1360) p.478. In that case, the Plaintiff had claimed “an order directing the Appellant to confirm his appointment as lecturer II in the Department of political science at the University of Jos with effect from 27th January, 1995 with all his promotions, allowances and entitlements, etc. The entire claim of the Plaintiff was dismissed and on appeal, the Court of Appeal allowed the appeal, but on further appeal to the Supreme Court, the appeal was allowed in part. However, that part of the claim relating to promotions, allowances and entitlements were adjudged not to have been satisfactorily proved and accordingly dismissed. My Lord, Alagoa, JSC who prepared and read the lead judgment held at page 498 Paragraph H of the report as follows:
all the reliefs pertaining to promotions, allowances and entitlements being reliefs that are vague, uncertain and lacking in particulars and proof by

evidence must fail as there was no evidence of any promotion, allowances or entitlements enuring to the Respondent which the Appellant is withholding from being exercised in the Respondent’s favour by the Appellant.”

The case of Eze v. Gov., Abia State (supra) was decided on the facts peculiar to it, Therein, the Plaintiffs/Appellants had prayed the Court to, inter alia, order the Governor of Abia State to reinstate them as Councilors of Aba South Local Government Council so that they complete the residues of their respect tenures. The distinction with this case is that, the Claimants in the Eze case were elected officials for a term certain. The trial Court held that the Claimant’s tenure had not expired and therefore made a consequential order that:
“… the Plaintiffs be paid salaries and allowances as councilors for the unexpired tenure of their office as councilors.”
It would be seen therefore that there was no specific claim for salaries and allowances, but the Supreme Court ordered that the Claimants be paid their salaries and allowances for the unexpired period they would have been in office. In the instant case, it has not been contended

that the Appellant held a tenured appointment. Furthermore, there was a specific claim for salaries, allowances and other emoluments, which the trial Court held not to have been proved. In the circumstances, to turn around and make any consequential order for the payment of salaries, allowances and other emoluments, would tantamount to granting what the trial Court found not to have been proved. In other words, a consequential order cannot be used to grant what has not been proved by the evidence.

Learned Counsel for the Appellant has contended that, the Appellant and the Respondent having pleaded and tendered in evidence the “Letter of Offer of Appointment” of the Appellant, the trial Court should have relied on the facts and particulars therein to order for the payment of those salaries, allowances and other emoluments. I agree with learned counsel for the, Respondent that, the said Letter of Appointment (Exh. B) was only pleaded and tendered for the purpose of showing that the Appellant was employed by the Respondent. Generally, in law, documents are pleaded for particular purposes. Thus where a document is pleaded and admitted for a particular

purpose, the Court cannot use any other portion of it which has not been specifically pleaded and evidence led thereon. See Ngwu v. Nnaji (1991) 5 NWLR (pt.189) p.18 and Nteogwuile v. Otuo (2001) 16 NWLR (pt.738) p.58. Thus, in the case of Ishola v. U.B.N. Ltd (2005) 6 NWLR (Pt.922) p.422 at 439 Paragraphs D – E, Kalgo, JSC held that:
“The Court can only use a document properly admitted before it for the purpose for which it was admitted. It is not open to the Court to use the document other than for the purpose not intended by the parties as pleaded unless the attention of the Court is drawn by any of the parties before it to do so. And even in that case, the Court must invite all the parties before it to address it on the point before making a decision on it. This, in my view is the only legitimate use of the document admitted in evidence in Court.”

In the instant case, the letter of employment sought to be relied upon by the Appellant as evidence of his salaries, allowances and other emoluments was pleaded in Paragraphs 7 and 12 of the Statement of facts as follows:
“7. The Claimant avers that sometimes in 2007, he applied for an employment

as an Executive Trainee in the Defendant company and having successfully met all the administrative academic, professional and ethical standards required for that position, he was offered an employment as an Executive Trainee vide the defendant’s offer letter dated 23rd November, 2007.
12. The Claimant avers that as a mark of his positive, excellent, satisfactory and professional performance, his appointment was confirmed by the Defendant vide a letter of confirmation dated 17th April, 2009. The Claimant shall found on the said letter at the trial.”

Nowhere in the entire pleadings of the Appellant have I seen, nor has my attention been drawn to where the Appellant pleaded the salaries, allowances and other emoluments of his employment with the Respondent. The Appellant did not state that fact in her Written Statement on Oath either. The learned trial Judge was therefore right when he found and held pleaded nor proved. See also Gonzee (Nig.) Ltd v. NERDC (2005) 13 NWLR (Pt.943) p.634 at 649 – 650. This issue is therefore resolved against the Appellant.

It would be seen therefore that this appeal has succeeded in part. In that respect that

point of the judgment dismissing the Appellant’s claim for salaries, allowances, emoluments, it is hereby affirmed. That part of the judgment pegging the suspension of the Appellant to the date of judgment is also set aside. I make no order on costs.

CROSS – APPEAL
The Respondent in the main appeal filed a Notice of Cross-appeal, Same is contained at pages 286 – 289 of the record of appeal. It was dated and filed the 18/8/2014. Same was amended by leave of Court on the 17/6/2015 vide Motion on Notice filed on the 17/6/2015. The Cross-Appeal was therefore argued on the Amended Notice of Cross-Appeal which was deemed filed on the 17/7/2015. The Amended Notice of Cross-Appeal consists of four (4) Grounds of Appeal, and in compliance with the Rules of this Court, the parties filed and exchanged Briefs of arguments. The Cross-Appellant’s Brief of Arguments was dated and filed on the 03/2/15 but deemed filed on the 17/6/2015. Therein, two issues were distilled for determination as follows:
1. In the entire circumstances of this suit, was it proper in law and equity for the learned trial Judge to have deprived the Cross-Appellant the benefit of

Exhibits D4 and D5 such that the Appellant was deprived of the usage of a document that would have enabled her to have a fair trial and could the learned trial Judge have come to the conclusion that the Cross-Respondent had not been dismissed if Exhibits D4 and D5 had not been wrongfully discountenanced by his Lordship of the Honourable Court below –
(Grounds 1, 3 and 4).
2. Was it proper in law and equity for the learned trial Judge to have approbated and reprobated severally in the course of his judgment and to have equally formulated and resolved the issue of whether the suspension of the Cross-Respondent ought to be with pay or without pay without giving parties the opportunity of being heard.
(Ground 2).

The Cross-Respondent’s Brief of Arguments was dated the 23/6/2015 and filed the 24/6/2015. It would appear that the Cross-Respondent did not formulate his own issue(s) for determination. This Cross-Appeal will therefore be determined on the issues formulated by the Cross-Appellant.

Now, arguing on issue one (1), learned counsel for the Cross-Appellant contended that, it is not in doubt that the learned trial Judge

discountenanced Exhibits D4 and D5; and that by so doing, the learned trial Judge wrongly deprived the cross-Appellant the benefits of Exhibits D4 and D5 thereby arriving at an unfair decision. He referred to Paragraphs 9, 11 and 12 of the Amended Statement of Defence and Paragraphs 10, 11, 13 and 14 of the Cross-Respondent’s Reply to the Amended Statement of Defence, to submit that, the only issue which the parties submitted for determination is, whether Exhibits D4 and D5 were served on the Cross-Respondent as claimed by the Cross-Appellant. In other words, whether the cross-Respondent had notice or knowledge of his dismissal.

Learned counsel for the cross-Appellant also submitted that, the learned trial Judge erred in law when he left the fundamental issue submitted for determination and proceeded to the issue of identity of the maker(s) of Exhibits D4 and D5. That the pronouncement of the trial Court at pages 177 lines 44 – 46 and 178 lines 1 – 40 of the record of appeal violated the settled principle of law that, a Court should limit itself to the issue(s) submitted to it for determination. That, rather than pronounce on whether or not Exhibits D4

and D5 were served on the Cross-Respondent, the learned trial Judge occupied himself with the admissibility or otherwise of the said Exhibits, on the ground that the identity of the makers is unknown. The case of Longe v. FBN Plc (2010) 6 NWLR (Pt.1189) p.1 was extensively cited to urge us to hold that the learned trial Judge was wrong to have discountenanced Exhibits D4 and D5, since same had been validly admitted. Furthermore, that the issue of fraud imputed to those documents was never raised either in the pleadings or evidence of the cross-Respondent. After conceding that it was the duty of the cross-Appellant to prove that Exhibits D4 and D5 were served on the Cross-Respondent, went on to submit that, if the learned trial Judge had limited himself to the issue of whether the Cross-Respondent had knowledge that he had been dismissed, he would have seen that the Cross-Respondent indeed had knowledge that he had been dismissed.

Learned Counsel for the Cross-Appellant went on to refer to the testimony of the cross-Respondent at page 216 lines 34 – 36 and line 19 – 22 of Exhibit E to contend that, the Cross-Respondent was being economical with the truth.

That, having admitted that his account is one of the indices to determine his status with the Cross-Appellant, his account having been treated as that of an ex-staff, then he knew that he was an ex-staff; and that he could only be an ex-staff if he had either been dismissed or his appointment terminated.

As an alternative submission, learned counsel for the cross-Appellant submitted, without conceding that, assuming it is found that the Cross-Respondent was not served with Exhibits D4 and D5, and therefore was not aware of his dismissal, the legal effect is that he still remained on suspension. That in such a situation therefore, the suspension was indefinite, which prompted this action, and that the suspension was without pay. It was thus submitted that, as long as the cross-Respondent remained on suspension, he is not entitled to his salary unless there is something contrary to that in the condition of service. The case of Longe v. FBN Plc (supra) at p.36 was further cited to submit that, the law is settled that unless there is something to the contrary in the condition of service, the Cross-Appellant could impose terms on the suspension. That, in the

instant case, the terms imposed are that, the suspension is without pay, and will last till the conclusion of investigation. That, the complaint of the cross-Respondent was that the suspension be declared wrongful because it run contrary to “UBA Employee Handbook,,. That the cross-Respondent tendered no such Handbook, and was therefore unable to demonstrate how his suspension run contrary to the UBA Employee Handbook”. It was therefore submitted that, even if it is proved that the cross-Respondent was not served with Exhibits D4 and D5, the proper order would be to dismiss the suit, because the cross-Respondents case is not that his dismissal be set aside because same was not communicated him, but that his suspension is wrongful and same be set aside. We were accordingly urged to hold that, even if the cross-Respondent was not served with Exhibits D4 and D5, he has not been able to show that his suspension is wrongful, and to dismiss the claim.

In response, learned counsel for the cross-Respondent contended that the learned trial Judge was right to have refused to place any evidential value on Exhibits D4 and D5. That, when one

considers the entire circumstances of this case, it will be discovered that the said Exhibits were only fathomed by the cross-Appellant in order to save its face after it had discovered that it had been caught in the web of law. That, in response to Exhibit F written by the cross-Respondent to the cross-Appellant seeking for information about the status of his employment with the cross-Appellant, the cross-Appellant wrote Exhibit G appealing to the cross-Respondent to suspend further action on the matter pending the outcome of its investigation as to the cross-Respondents status in its employ. That, Exhibit G was written two weeks after receipt of Exhibit F, but the cross-Appellant never informed the cross-Respondent by the said Exhibit G that Exhibits D4 and D5 had been made and served. It was therefore submitted that, no reasonable Court would believe in the circumstances that Exhibits D4 and D5 had been in existence before Exhibit F was received.

Learned counsel for the cross-Respondent conceded that, it is very clear from the pleadings of the parties that the issue of service of Exhibits D4 and D5 was in contention. That, it is the

cross-Appellant who asserts positively that the Cross-Respondent was served, and therefore has the onus of proving that assertion. The cases of Ibrahim v. Ojomo (2004) 1 S.C. (Pt.II) 149 – 150 and Imonikhe v. Unity Bank (2011) 12 NWLR (Pt.1262) p.624 at 644 Paragraphs A – C, were then cited in support, and to further submit that, the onus was on the cross-Appellant to prove service by producing a copy acknowledging receipt of those documents. That there was no such endorsement on either Exhibit D4 or D5. The case of Yadis Nig. Ltd v. GNIC Ltd (2007) All FWLR (Pt.370) p.1348 at 1370 Paragraphs A – C was further cited in support.

Learned Counsel for the cross-Respondent further cited the cases of Arta Ind. Ltd v. N.B.C.I. (1997) 1 NWLR (Pt.483) p.574 at 597 Paragraphs C – D; Akere v. Adesanya (1993) 4 NWLR (Pt.288) p.484 at 497 Paragraphs D – F and S.P.D.C.N. Ltd v. Amadi (2010) 13 NWLR (Pt.1210) p.82 at 131 – 132 Paragraphs G – A, to submit that, the fact that a document has been admitted in evidence does not automatically confer evidential value on same. That, a document may be admitted in evidence but may lack

credibility or weight.

On the issue of the UBA Employee Handbook, learned counsel for the Cross-Respondent submitted that, a careful look at the record of appeal will reveal that the cross-Respondent filed and served a Notice to produce on the Cross-respondent. That there is evidence that the said Handbook was produced by the Cross-Appellant after the close of evidence of the Cross-Respondent. It was further submitted that, even if the said Handbook contains a provision that a person on suspension will not be entitled to salary, that provision will only be valid for a specific period and not for an indefinite period as done in the Cross-Respondent’s case. That authorities are legion that suspension does not mean dismissal or termination from or of employment. The case of Mobil Producing (Nig.) Ltd v. Udo (2009) All FWLR (pt.482) p.1177 at 1224 – 1227 Paragraphs G – C and Black’s Law Dictionary (8th Ed.) were cited to submit that the learned trial Judge was therefore right in holding that the Cross-Respondent is still an employee of the Cross-Appellant from the date of his suspension. We were then urged to resolve this issue in favour of the

Cross-Respondent.

I have also read the Cross-Appellant’s Reply Brief on Points of Law filed on the 13/8/2015. I shall have the points raised therein at the back of my mind in the resolution of this issue.

Now, the law is settled that, parties and indeed the Court are bound by the pleadings and evidence led thereon. In that respect, the duty of the Court is to decide between the parties on the basis of what they have pleaded and demonstrated or canvassed and tested by way of evidence before it. It is therefore not within the power of the Court to make a case of its own for any of the parties different from what was pleaded and canvassed before it. In other words, a Court is not competent to suo motu make a case for either or both of the parties different from what was pleaded and demonstrated before it by way of evidence, and to proceed to give judgment thereon. See Ahmadu v. Yantumaki (2011) 9 NWLR (Pt.1251) p.161; Okuhowo v. Molajo (2011) 3 NWLR (Pt.1235) p.434; Skye Bank Plc v. Akinpelu (2010) 9 NWLR (Pt.1198) p.179 and Udoudom v. Regt Trustees, Q.I.C. (2010) 5 NWLR (Pt.1294) p.469. See also Adeosun v. Gov, Ekiti State (2012) 4 NWLR (Pt.1291)

p.581

In the instant case, the issue pertaining to the dismissal of the Cross-Respondent was raised by the cross-Appellant in Paragraphs 9, 10, 11 and 12 of the Amended Statement of Defence where the Cross-Appellant pleaded that:
9. The correct and true position is that the Claimant had been informed of his dismissal long before his solicitors letter was received because the Solicitor’s letter was received on December 15th, 2011 whereas the Claimants dismissal letter was communicated to him on December 9, 2009. Furthermore, the Defendant’s letter of December 5, 2009 communicated to the Claimant as an ex-staff his outstanding indebtedness to the Defendant back-log of the loan availed him while he was in the service of the Defendant bank.
10. In furtherance to Paragraph 6 above and in reply to Paragraph 24, 25, 27, 28, 29, 30, 31 and 32 of the claim, the Defendant avers pursuant to the that recommendations of the members of the disciplinary committee, the Claimant was accordingly dismissed from the employment of the Defendant via a letter dated December 2, 2009 and titled Letter of Dismissal’. Notice is hereby given to

the Claimant to produce the original which was duly served on him.
11. Contrary to the Claimants claim that the outcome of the committees investigation was not communicated to him. The Defendant avers that the letter of dismissal was duly communicated to him.
12. Furthermore, a letter dated December 8, 2009, and titled “RE: LETTER OF DISMISSAL was communicated to the claimant, wherein his indebtedness to the Defendant was succinctly stated. Notice is hereby given to the Claimant to produce the original.

The above pleadings show clearly that, the case of the Cross-Appellant is that, the Cross-Respondent had been dismissed pursuant to the recommendations of the Disciplinary Committee and a letter of dismissal was duly made and served on the Cross-Respondent. The response of the cross-Respondent is in Paragraphs 10, 11, 13 and 14 of the Reply to the Statement of Defence. Therein, the Cross-Respondent pleaded that:
“10. The claimant in further reply to the averment in Paragraph 9 of the statement of Defence avers that no letter of dismissal was communicated nor served on him till date and therefore puts the defendant

to the strictest proof of the averment in the said paragraph.
11. The claimant in reply to the averment in Paragraph 10 of the statement of claim denies the said averment and puts the Defendant to the strictest proof of same. The claimant further avers that no letter of dismissal dated 2nd December, 2009 or any other date either originating from the defendant or any other person or body was served on him that date or any other date till now. The defendant is hereby put to the strictest proof of the averment contained therein
13. The claimant in reply to averment in Paragraph 13 of the statement of defence avers that no letter of dismissal or its notice was communicated to him by the defendant or any other person or body and that apart from the letter of suspension issued to him by the defendant, no other fetter nor letter of purported dismissal or any dismissal whatsoever was served on him.
14. The claimant in reply to the averment in Paragraph 14 of the statement of Defence put the defendant to the strictest proof of the averments therein. The claimant in further reply to the said averment avers that nobody dismissed him nor was there anytime,

he was advised to resign either subject to the recommendation of the Disciplinary Committee or any other committee.

It would be seen therefore, that the case of the cross-Respondent is that, he was never dismissed from his employment with the cross-Appellant nor any letter of dismissal served on him. The issue that called for determination was therefore, whether the cross-Respondent had been dismissed and whether such letter of dismissal had been communicated to him. Rather than determine those issues, the learned trial Judge busied himself with the determination of the probative value or weight to attach to the documents evidencing such dismissal, pleaded, tendered, relied upon by the cross-Appellant and duly admitted by the Court without objection. While it is not in doubt that a trial Court has the liberty to evaluate and give weight or evidential value to any piece of evidence, oral or documentary duly proved before it, such evaluation should not be used as a tool to discountenance a piece of evidence which has been duly proved and admitted before it, especially where that piece of evidence was admitted without objection. Accordingly, where the Court

desires to reject or discountenance a piece of document duly pleaded, proved and admitted in evidence on grounds not canvassed by the parties, he has a duty to invite counsel to address it on it before acting on the document. If the Court suo motu raises and resolves such issue in the determination of the dispute between the parties, the party damnified by the finding of the Court will be right to complain of the breach of his right to fair hearing. In the instant case, it is my view, which I hold, that the learned trial Judge erred when he suo motu raised the issue of the legitimacy of Exhibits D4 and D5, which he equated to having been fraudulently made, resolve same, contrary to the case presented before him in respect of those Exhibits. I accordingly set aside that finding of learned trial Judge which discountenanced Exhibits D4 and D5.

Now, learned counsel for the cross-Appellant had submitted in the alternative that, even if this Court holds that Exhibits D4 and D5 had not been served on the cross-Respondent, the result would be that he remained in suspension, thereby turning his suspension into an indefinite suspension. To determine the issue, it is

my view that, it would be necessary to look at the wordings of the fetter of suspension. The letter of suspension was pleaded by both parties, tendered and admitted as Exhibit D. Same was dated the 17th September, 2009 and it reads as follows
“Following the report from investigations, and management’s subsequent approval, you are being placed on suspension without pay with immediate effect for your alleged involvement in the above stated case, pending the conclusion of investigation.”

It is therefore clear that the suspension of the Cross-Respondent was to last “till conclusion of investigation”. That cannot by any ingenuity of construction interpreted as “an indefinite suspension”. The records show clearly that the Cross-Appellant set-up an investigation committee which sat and produced a report which is in evidence as Exhibit D3. The committee (Disciplinary Committee) recommended that the Cross-Respondent (Adekunle Osamoto) be dismissed. Though, the Cross-Respondent presented it to the Court that he was not aware of the result of the disciplinary committee, the entire circumstances of the case show clearly that he had knowledge that the

committee had recommended his dismissal. If he had knowledge that some of the persons tried with him had been advised to retire and did retire, it would be absurd that he had no knowledge of the result of the investigation which had to do with his livelihood, for over a period of two or three years and he did not bother to find out his own fate. The committee’s report is dated 16/10/2009. Consequent on Exhibit D4, Exhibit D5 was written to the Cross-Respondent intimating him of the status of his account with the Cross-Appellant. The Cross-Respondent never denied that Exhibit D5 was served on him and he never wrote to inquire about his status till 15/12/2011 when he wrote Exhibit F. Exhibit G which was written by the Cross-Appellant’s Legal Department cannot by any stetch of construction to mean that the Cross-Appellant acknowledged that the Cross-Respondent’s suspension was still subsisting. By the said Exhibit G, the Cross-Appellant’s Legal department only intimated the Cross-Respondent that they were investigating the allegations made by him in Exhibit F. That is why the Cross-Appellant pleaded in Paragraph 8 of the Amended Statement of Defence that, after

they investigated the allegations in Exhibit F, they discovered that the cross-Respondent had already been informed of his dismissal.

From my findings above, it is my firm view that the Cross-Respondent had knowledge of his dismissal consequent upon the recommendation of the Disciplinary Committee. Furthermore, his case at the Court below, is not challenging his dismissal. His case is that, his suspension, which he coined as “indefinite”, contrary to Exhibit D, be set aside as being wrongful as it contravened the UBA Employee Handbook. He however failed to tender that Handbook, the result of it is that, if he had tendered it, it would have been unfavourable to his claim. See Section 167 (d) of the Evidence Act. I therefore hold that, the learned trial Judge erred when he held that the suspension of the Cross-Respondent was subsisting from the 17th of September 2009 till the date judgment was delivered. My finding therefore is that the suspension of the Appellant ended on the date the letter of dismissal was made. Issue one is therefore resolved in favour of the Cross-Appellant.

Now, in view of my findings on issue two (2) of the main appeal and

issue one (1) of the Cross-Appeal, I see no need to proceed on issue two formulated in the cross-Appeal. In other words, having found that the Appellant/cross-Respondent was effectively dismissed the issue of whether or not his suspension was to be with or without pay has become moot and of no practical significance. It has become purely abstract or academic without any utility value to any of the parties to this appeal.

Having found as above, the Cross-Appeal is hereby allowed on the only ground resolved therein. Accordingly the decision of the trial Court discountenancing Exhibits D4 and D5 is hereby set aside. I do not also award any cost in respect of the Cross-Appeal.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother Tsammani, JCA. I fully agree with his ably well set out reasonings and conclusions. I too would allow the appeal in part and allow the cross-appeal. I abide by all the consequential orders in the lead judgment and would also not make any order for costs.

NONYEREM OKORONKWO, J.C.A.: I have had a preview of the judgment in this appeal just

delivered by my learned brother Haruna Simon Tsammani JCA. I agree with his reasoning and conclusions reached.

Suspension in contracts of employment operates to suspend the contract rather than terminate the contractual obligation of the parties. It is a step taken in the interest of the employers business when certain issues of misconduct are being looked into and where the misconduct is proved, suspension consequent upon it, in my view relates back to the date of the misconduct.
See Bernard Ojeifo Longe vs. First Bank of Nigeria Plc. (2010) 2 – 3 5.C. (pt.III) 61.

Appearances

Yakub Dauda, Esq. with him, M. A. Saliman, Esq., O. D. Oseni, Esq. and Ijalaye Dayo For Appellant

AND

Musibau Adetunbi, Esq. with him, Miss. J. Omoneukharin and O. B. Aluka, Esq. For Respondent