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National Industrial Court

MR. RICHARD OGUNSINA -VS- GLOBACOM LIMITED & 2 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

 

BEFORE HIS LORDSHIP HON. JUSTICE A. A. ADEWEMIMO

 

DATED:  18TH OCTOBER, 2019                               

SUIT NO: NICN/AK/47/2018

 

BETWEEN

 

  1. RICHARD OGUNSINACLAIMANT

 

AND

 

  1. GLOBACOM LIMITED
  2. SANCOMEX ENTERPRISES LTD       DEFENDANTS
  3. VIXEN ENTERPRISES LIMITED

 

REPRESENTATION:-

 

FESTUS FATIMEHIN HOLDING THE BRIEF OF MR. MORAKINYO OGELE.

 

BUSAYO OLAJIDE APPEARS FOR THE DEFENDANTS.

 

JUDGMENT

 

The Claimant instituted this suit vide a complaint dated 2nd August, 2018 claiming the following reliefs against the Defendants, to wit:

  1.             A sum of N18,666,666 being the total sum of leave bonus due to be paid to the claimant from 2004 – 2018.
  2.             A sum of N68,000,000 being the claimant salaries from March 2013 – August 2018.

Hence the total sum claim is as stated below:

N18,666,666

N68,000,000

 

N86,666,666

 

 

(Eighty Six Million, Six Hundred and Sixty Six Thousand, Six Hundred and Sixty Six Naira)

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

The Claimant’s case is that he was employed by the Defendants vide a letter of Offer of Appointment dated 27th September, 2004, and he was posted to the sales department of the defendants in Akure, Ondo State, while his appointment was confirmed vide letter dated 4th October, 2005.

The Claimant stated that he was promoted several times and eventually to the position of Divisional Director, and was rewarded for good performance by the Chairman of the 1st Defendant.  He averred that at various times, he has made millions of naira for the defendants. However, sometimes in April 2014, the defendants suspended him for a month for what they tagged “low performance” and when he resumed at the end of April 2014, he was not allowed into his office to continue with his duties and all attempts to resume duties since then was frustrated by both the legal and internal audit of the 1st defendant.

The claimant avers that since April 2014, he has constantly been demanding for his entitlement from the defendants to no avail, he stated further that he was on suspension for 51 months without pay and his salaries in lieu of his annual leave for the past years remains unpaid.

Whereof he claims against the Defendants as above stated.

The defendants filed their memorandum of Appearance on 4th September, 2018, and also filed their joint Statement of Defence and other processes on 5th October, 2018.  The defendants averred that each of the defendants is a distinct legal entity with its own distinct objects although in a contractual relationship.  The defendants admitted that the claimant was seconded to the 1st defendant by the 2nd defendant but remained at all relevant times in the employment of the 2nd defendant and the performance bonus he was awarded was not meant for the claimant alone but for the entire Sales Staff working with the Claimant.

The defendants stated that the claimant was suspended without pay for a month due to his complacency, poor and unsatisfactory performance. Upon the expiration of the one month suspension, the claimant refused to show up at the Human Resources Department of the 2nd defendant, his true employer, neither did he report at his designated place of work.  The defendants stated further that the claimant understood the modus operandi of a returning staff from suspension (which includes reporting at Personnel/Human Resources Department, where he would be re-interviewed or made to face disciplinary panel before being given fresh instructions where necessary).  The 1st – 3rd defendants stated that the claimant could not be reached having dropped his official line and being no longer on the central electronic mail system of the 1st and 2nd defendants during the period of suspension.

The defendants denied frustrating the claimant legally or through its internal audit department, and that it was the claimant who abandoned his duty post and was deemed to have determined his contractual relationship with the 2nd defendant by his refusal to resume work. The 1st and 3rd defendants contended that they were improperly joined as parties to this suit as the claimant is not in their employment. The defendants urged the Court to dismiss the claimant’s claim in its entirety as it lacks merit and same is vexatious, gold digging, speculative and an abuse of Court process.

The Claimant filed his reply to the Statement of Defence on 12th November, 2018 in which he insisted that the Defendants are individually registered companies, yet fused as one under a tripartite operational structure and that both 2nd and 3rd defendants are under the control of the 1st defendant and the same management. The Claimant added that the 3rd defendant deducted taxes from his salaries for the years 2005, 2006 and 2007 and paid same to Oyo State Government, and they all are operating as a unit. The claimant reiterated that after the expiration of his one month suspension, he reported at his office with the 1st defendant and was instructed to be reporting every day, an instruction he complied with. The claimant denied the averment that he refused to show up at work and asserted that he was kept on the defendants payroll up till March 2016, receiving N0.00 (zero naira) commensurate with the penalty that followed the suspension, he pleaded the pay slip and email alerts he received during the period and averred that as at date his appointment is yet to be determined as he was not issued with any letter of termination.

The claimant pleaded that he is entitled to a payment in lieu of leave of 20 working days per year from September 2004 to April 2014 (10 years) and salaries for the period of his suspension without pay. He prayed the Court to grant all his reliefs and order the defendants to pay his entitlements.

The trial in this case commenced on the 7th of March, 2019, with the Claimant testifying for himself as CW1, he adopted his written statement on oath, and tendered some documents which were admitted by the Court in evidence and marked Exhibits DR1 – DR18 and was duly cross examined. The Claimant thereafter closed his case.

The Defendants opened their defence by calling Mr. Olufemi Kolawole, Human Resources (Administration) of the 1st Defendant as DW1, he adopted his written statement on oath and was cross examined, the Defence closed their case and the case was adjourned for Adoption of Final Written Addresses.

The parties in this suit adopted their final written addresses on the 19th of July, 2019.

Busayo Olajide Esq., of counsel for the defendants adopted the Final Written Address of the defendants filed on the 5th April, 2019, wherein he formulated two (2) issues for determination of this case, to wit:

  1. Whether the 1st Defendant and the 3rd Defendant are necessary parties to this suit.

 

  1. Whether an employee who failed to resume work for 51 Months upon suspension for a month has not repudiated his contract of employment.

 

The defence raised the issue of admissibility of certain documents that were admitted as Exhibits in this suit i.e. Exhibits DR1, DR10, DR12 DR14 and DR15. He pointed out that Exhibits DR1, 10 and 12 were not frontloaded as the documents tendered are different from the ones filed with the originating processes, he urged the Court to hold that they are inadmissible. Learned counsel submitted with regards to Exhibits DR14 and 15, that these are computer print outs and the law requires that a proper foundation should be laid before tendering same, citing Section 84 of the Evidence Act, 2011. He urged the Court to mark all the above Exhibits as rejected or in the alternative discountenance them by not ascribing any probative value to them.

 

On issue one formulated by the defence counsel above, counsel submitted that it is evident that there is a contractual relationship between the claimant and the 1st and 3rd Defendants, he pointed out that the Claimant stated under cross examination that he was not given three appointment letters by the 1st – 3rd Defendants and the 1st Defendant did not issue any appointment letter to him. He stated that facts admitted by the adverse party need not be proved, and cited OGBOKA V. STATE (2017) ALL FWLR PT. 870 @ 1173 PP 1199 PARA. C – D and ALHASSAN V. ISHAKU 2017 ALL FWLR PT 866 AT 209 PP. 314 – 315, PARA H – C. Learned counsel submitted further that there is no doubt that Exhibit DR1 was issued by the 3rd Defendant, which offer letter is rendered invalid by the failure of the claimant to accept same or act on it, thus leaving the only operative offer of the 2nd defendant i.e. Exhibit DR4. He noted that the claimant corroborated this position when he gave evidence that his employment commenced on 27th September, 2004 which is in tandem with Exhibit DR4, thus Exhibit DR4 is the valid letter of offer in this case. The defence Counsel added that the Claimant himself tendered Exhibit DR3 which was his letter of secondment issued by the 2nd defendant and this in essence corroborated the fact that the contractual relationship is between the claimant and the 2nd defendant, and reiterated the fact that the 1st and 3rd Defendants were wrongfully joined in this suit and are not necessary parties. The defendants counsel urged the Court to resolve this issue in favour of the Defendants, and hold that the Claimant was not an employee of the 1st and 3rd Defendants.

 

On issue two, the Defendants’ counsel submitted that the claimant in this case testified before this Court that he does not know whether the 2nd Defendant is a registered company in Nigeria and that he did not work for the 2nd Defendant but the 1st Defendant who he did not have any contractual relationship with except for Exhibit DR3 through which he was seconded to the 1st defendant. Learned Counsel pointed out that throughout his testimony, the claimant did not lead evidence that he visited the premises of the 2nd defendant, at 18A, Oko-Awo Close, Victoria Island, Lagos.  He submitted that the claimant’s clear denial of the 2nd defendant notwithstanding Exhibits DR1, DR2, DR3 and DR4 indicates that the claimant is on a gold digging exercise.

The defence counsel maintained that the totality of the Claimant’s claim is an equitable relief, and it is trite that he who comes to equity must come with clean hands, he stated that the claimant having refused to resume or report at his place of work for a period of 51 months after the expiration of his suspension later turned around to claim ridiculous amounts for staying out of work, and posited that this is unfair.  He cited AMADI V. I.N.E.C. (2012) ALL FWLR PT. 621 @ 1415 PP AT 1450 PARA, B – C, BABALE V. EZE 2012 ALL FWLR PT. 635 @ 287 PP 337 PARA. F – H.  Counsel submitted that the claimant on his own having abandoned work is deemed to have repudiated his contract of employment. He posited that it is trite that a valid contract between parties may be discharged in one of the four ways known to law: (1) by performance, (2) by express agreement, (3) by the doctrine of frustration, or (4) by breach.  He cited TSOKWA OIL MARKETING CO. V. B.O.N. LTD (2002) NWLR PART 777 particularly at 163 PP at page 200, para C – E. 

The defendants’ counsel further submitted that leave bonus and salaries are recompense or emolument for work done or service rendered which the claimant have not done or rendered.  He cited INTELS (NIG) LTD V. BASSEY [2013] ALL FWLR PT. 675 @ 376 PP 385 PARA B – D.  He reiterated that the claimant is not entitled to any emoluments as he did not work for his employer during the stated period and urged the Court to hold that the claimant having not worked for the 2nd defendant for the period, is not entitled to any salary or leave bonus.

In conclusion, the defendants’ counsel urged the Court to dismiss the claim of the clamant for lacking in merit with substantive cost.

The claimant’s counsel filed his Final Written Address on 6th May, 2019, wherein he formulated three (3) issues for determination, to wit:

(1) Whether there is a misjoinder of parties or whether 1st and 3rd defendants are not necessary parties in this matter.

 

(2) Whether the claimant failed to report for work after a month suspension.

 

(3) Whether the claimant is entitled to his salary and leave bonus arrears/allowance in lieu of leave.

 

On issue one above, M. P. Ogele Esq., counsel for the claimant submitted that the 1st and 3rd Defendants are necessary parties in this suit.  He stated that there is a nexus or a cord that binds all the three defendants together as they are functioning under a single management i.e. 1st defendant. He pointed out that the defendants in their statement of defence acknowledged that the three defendants have a contractual relationship. He added that the defendants’ Solicitor jointly filed all the processes in this matter in defence of all the defendants. He also referred to Order 13 Rule 15 (i) of which the defendants could have taken advantage of by filing a motion to strike out the names of the 1st and 3rd defendants if indeed the 1st and 3rd defendants are not necessary parties, positing that it is too late in the day for them to complain at this stage. He pointed out that from the record, one Mr. A. Sangowawa signed for all the defendants as Executive Director Human Resources and referred to Exhibits DR 1 – DR 10. He also cited LEAD MERCHANT BANK LIMITED VS MUSILIU SALAMI & 4 ORS (2008) ALL FWLR PART 404 PAGE 1587 AT 1536-1539,  referred to DW1’s witness statement on oath which read “1ST – 3RD DEFENDANTS’ WITNESS STATEMENT ON OATH” deposed to by the Human Resources Administrator of the 1st defendant.  Thus, he submitted that there is no doubt from the facts available in this case that the defendants are inexorably linked and DW1 is representing all the defendants, and as such they cannot be allowed to approbate and reprobate at the same time.

 

Learned counsel pointed out that the defendants all have a common interest, share the same head office in their official letter headed papers and are under the same management, therefore their presence is material or necessary for the just determination of this suit.

 

Finally, counsel referred to Exhibits DR7 to DR10 where the claimant’s salary was reviewed by the 1st defendant to buttress his point and concluded by urging the Court to resolve the issue in the claimant’s favour.

 

On issue two, counsel for the claimant urged the Court to hold that the claimant reported for work after the expiration of one month suspension as directed by the defendants.  He maintained that there is no dispute that the claimant was asked to proceed on one month suspension without pay in April 2014 and after the expiration of the suspension, he reported to continue his schedule with the 1st defendant (where he has been working since 4th day of October, 2004), he pointed out that Exhibit DR3 was signed by Mr. A. Sangowawa, the Executive Director Human Resources of the 2nd defendant.  He noted that till date there is no letter recalling the claimant from the office of the 1st defendant and after the expiration of the suspension he went to report in his old office. He argued that it is not in doubt also that the claimant was in a triangular employment relationship as this was never controverted by the defendants from the processes filed.

 

The claimant’s counsel argued that there is a document of secondment by the 2nd defendant and no letter of recall, hence the claimant reported at the 1st defendant office that suspended him. He cited PETROLEUM AND NATURAL GAS SENIOR STAFF ASSOCIATION (PENGASSAN) V. MOBIL PRODUCING NIGERIA UNLIMITED delivered on 21-3-2012 by Hon. Justice B. Kanyip of this Court. The counsel submitted that this Court had established, in a plethora of cases, that where the existence of a triangular employment relationship is brought before the Court, the Court will in arriving at its decision on to whether the end-user (in this case, the 1st defendant) is the employer, a co-employer, consider the actual facts of the case.

 

The claimant’s counsel submitted that it is clear from all the evidence adduced and Exhibits tendered in this case that the available facts in this case is akin to what the ILO (International Labour Organization) called disguised or objectively ambiguous employment relationship, which is meant to either mask the identity of the employer or mask the form in which the relationship was established. According to counsel, the action of the defendants is a sham designed with the intention of releasing the 1st defendant of his contractual obligation to the claimant.  He therefore urged the Court to hold that the 1st defendant is the employer of the claimant and that the suspension order having originated from its office, it follows that the claimant should resume at the 1st defendant.

 

On issue three, learned counsel to the claimant submitted that the claimant is entitled to his fifty one (51) months salaries and leave bonus/outstanding allowance in lieu of leave as his employment has not been terminated.  He maintained that he had demonstrated that the claimant resumed work but was frustrated by the defendants He cited MR OSAMOTA ADEKUNLE VS. UNITED BANK FOR AFRICA (UNREPORTED) SUIT NO: NICN/IB/20/2012 judgment delivered on 21-5-2014 by Justice B. Kanyip.

 

  1. P. Ogele, Esq. of counsel for the claimant submitted that the claimant is entitled to all his entitlements as captured in his originating processes and proven by him through the Exhibits tendered and evidence adduced in this case.

 

The defendants filed their Reply on Point of Law on the 21st of May, 2019. He reiterated that there is no iota of evidence before this Court to support the assertion that Glomobile Limited is a subsidiary of Globacom Limited, he stated that the Court is bound by its record and more particularly, counsel is not allowed to raise fresh issue in his address.  The Defendants’ counsel further submitted that the claimant’s counsel misconstrued the interpretation in respect of Order 15, Order 13(a) (b) (4) (i), and the unreported case cited by learned counsel, which do not have similar facts and have been cited out of context.  He stated that the authorities are not binding on this Court and the decisions are yet to be tested at the apex Court.

 

He urged the Court to uphold the defendants’ position on this reply on point of law and discountenance the arguments and authorities cited by counsel to divert attention and misdirect this Court for being unfounded and lacking in merit.

 

I have carefully gone through the processes filed by counsel in this suit and I have come up with the following issues which will best determine this suit to wit:

  1. Whether or not the 1st and 3rd defendants are mis-joined in this suit;
  2. Whether or not the claimant is still in the employment of the defendants;
  3. Whether or not the claimant is entitled to his claims.

 

Prior to resolving the issues for determination formulated by me, I will first and foremost treat the issue of the admissibility of some documents that were admitted by the Court in this suit. Learned counsel to the defendants on the 7th of March, 2019 during the course of the trial objected to the admissibility of some documents tendered by the claimant and opted to address the Court on same in his final address. Pursuant to this, the defendants’ counsel addressed the Court on the admissibility of Exhibits DR1, DR10, DR12, and DR14 & DR15 in his final address and submitted that the Exhibits DR1, DR10 and DR12 were not frontloaded as the documents frontloaded are different from the documents tendered, on Exhibits DR14 and DR15, he submitted that the documents offends Section 84 of the Evidence Act as they are computer generated documents and no certificate of compliance was attached. He therefore urged the Court to reject them having failed to meet the requirements of admissibility stipulated by law. In the alternative he urged the Court not to attach any probative value to them.

 

The claimant on the other hand contended that Exhibit DR1 is a signed letter of employment while Exhibit DR10 is a letter of employment, all frontloaded, On Exhibits DR14 & DR15, claimant’s counsel submitted that the documents are admissible in law and relevant as such the Court should not consider technicalities.

 

I find that the Exhibits in issue in this case were pleaded, relevant and admissible. Added to this by Section 12(b) of the National Industrial Court Act, 2006 this Court is empowered to depart from the rules of evidence on the grounds of relevance. On record is Exhibit DR1 which was signed and thus is a document of the author A. Sangowanwa Exec. Director Human Resources of the 2nd defendant, DR10 and DR12 are letters of salary review that were pleaded and therefore admissible, however the probative value to attach to them is left for the Court. Exhibits DR14 & DR15 which the defendants claimed are computer generated are equally relevant. It is said that relevance is the precursor to admissibility. I find from the reasoning above and bases on Section 12 (b) NICA, 2006, that these documents are relevant and therefore properly admitted. I so hold.

 

On issue one, it is the contention of counsel to the defendants that the 1st and 3rd Defendants were wrongfully joined in this matter and are not necessary parties to the suit. The claimant on the other hand contends that all the defendants are necessary parties.

 

It is a long standing rule of judicial adjudication that no cause or matter shall be allowed to be defeated by reason of mis-joinder or non-joinder of parties as such mis-joinder or non-joinder is not fatal to the proceedings. A Court of law is enjoined in such cause or matter, to deal with the matter in controversy in so far as it regards the right and interest of the parties actually before it. See CBN v. Joseph Azoro [2018] LPELR-44389 (CA); Bello v. INEC [2010] 8 NWLR (Pt 1196) 342.

 

The question that arises is, are the 1st & 3rd Defendants necessary parties? It is settled that necessary parties are parties whose presence is necessary for the just determination of this suit, see DR THOMPSON NDUBUISI OBAREZI V. CHIEF OSITA ILOZOR & ANOR 2010 LPELR 4667 CA, where it was held per Ngwuta J.C.A as he then was, as follows:

 

“A necessary party to an action is one in whose absence the question submitted for determination cannot be completely and effectively settled. A necessary party is one who is bound by the decision in the matter, same one whose presence is necessary as a party”.

 

Also in R.T.N.A & ORSV.M.H.W.U.N 2008 NSCQR Pt1 321Mukhtar J.S.C held:

“All those who claim some share or interest in the subject matter of the suit, or who may be affected by the result, as well as those who the Court will join even suo motu, are necessary parties, for their presence before the Court may be necessary in order to enable the Court, effectively and completely, to adjudicate upon and settle all the questions involved or in controversy”.

 

The claim in this case revolves round the 1st – 3rd Defendants. It can therefore be deduced from the above cited authorities that the 1st & 3rd Defendants have a vital role to play in this suit as the 1st defendant is where the claimant was seconded to work vide Exhibit DR 3 while the 3rd Defendant also issued an offer of employment letter to the claimant vide Exhibit DR1, thus the foundation of the claimant’s contract of employment is in issue, and this from the facts in this case involved the three defendants.

Bdliya J.C.A in Ashaka v. Nwachukwu [2013] LPELR-20272 (CA) held:

“A contract or an agreement may be in writing, orally or even by conduct of the parties. This was the view of the Supreme Court in the case of A.G Rivers State v. A.G. Akwa Ibom State [2011] 8 NWLR PT.1248 P.31 @ 108 where it was held that an agreement need not be in writing nor signed by the parties. It can be oral or inferred from the conduct of the parties. What matters is that there must be evidence of consensus ad idem between them”

I find from the evidence available in this case that the conduct of the parties discloses a consensus ad idem on the contract of employment with the claimant, thus the 1st and 3rd defendants are necessary parties to this suit and are therefore properly joined. I so hold.

 

On issue two, counsel to the claimant contended that the claimant was suspended for a period of one month in April 2014 and after the expiration of one month of his suspension, he reported to continue his schedule with the 1st defendant but he was refused entry to his office. Counsel to the defendants on the other hand contended that the claimant having abandoned his work by failure to follow the laid down procedure for resuming work after suspension is deemed to have repudiated his contract of employment.

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

Generally, the Court recognizes the right of an employer to discipline its staff in the interest of the business of the employer and will not interfere with right of the employer to discipline any erring employee. See Imonikhe v. Unity bank plc[2011] 12 NWLR (Pt.1262) 624 SC at 649, Shell Pet. Dev. Co.(Nig.)Ltd v. Omu [1998] 9 NWLR (Pt.567)672, see also Nepa v. Olagunju [2005] 3 NWLR (Pt.913) 602.

Having stated the above, the suspension of the claimant for one month is not in dispute. However, the refusal of the 1st defendant to allow him access to his office can be likened to an indefinite suspension. The contention of the defendants that the claimant ought to know that he had to resume at the Human Resources Office of the 2nd defendant to get a new schedule of duties will not hold any water, so also the contention that the 2nd defendant is the claimant’s employee, this is because, from all intent and purposes and the facts adduced in this case, the relationship between the 2nd and 1st defendants connotes an agency where one person has the capacity to create legal relations between a third person and the person occupying the office of the principal, the claimant was placed on a salary by the 1st defendant who was responsible for paying his salaries, worked for and was suspended by the 1st defendant, see PORT-HARCOURT REFINING COMPANY LTD  (PHRC) V. IMUOH OKORO 2010 LPELR 4861 CA. Added to this the terms of conditions of service placed before this Court particularly Exhibit DR1 & DR4 is silent on suspension or the procedure mentioned by the defendants, in short there is nothing on record to support the defendants assertion as to this. It is settled law that he who asserts must proof, the defendants retains the duty to proof that this procedure is known to the claimant, and having failed to discharge this burden, the claimant cannot be expected to know the procedure after his suspension and cannot therefore be faulted for doing what any ordinary employee would do i.e. to resume at his duty post. It is premised on this that I find that the claimant is an employee of the 1st defendant. I so hold.

It is settled law that suspension is a tool of business employed by an employer in protecting his business as stated earlier.  In Shell Pet. Dev. Co. v. Lawson Tack [1994] NWLR PT.545 249, the Court defined suspension as follows:

“the suspension of an employee is not an unusual procedure taken in order to facilitate the investigation. Thus an employee affected can hardly complain of not having been given a hearing; nor can he demand that the rules of natural justice should apply”

See also Akinyanju v. University of Ilorin [2005] 7 NWLR (Pt.923) 87, where the Court held that:

“suspension means to defer, lay aside or hold in abeyance, it also means to halt halfway but not to bring to an end. Suspension pending investigation can never amount to a breach of the employee’s right to fair hearing.”

Suspension cannot therefore be equated with dismissal or termination. In NEPA V.OLAGUNJU [2005] 3 NWLR (PT 913) 602, it was held that it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. The employer therefore has a right to suspend an employee when necessary, with or without pay or at half pay if it is so stated in the contract of employment. In the English case of HANLEY V. PEASE & PARTNERS LTD [1915] 1 KB 698 AND MARSHALL V MIDLAND ELECTRIC [1945] 1 ALL ER 653, it was held that an employer cannot suspend its employee without pay where there is no express or contractual right to do so.  The rationale is that in suspending an employee without pay, the employer has taken it upon itself (outside of the Court) to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. See the case of MR PETER OLASUNKANMI ATOKI V. ECOBANK NIGERIA PLC [2014] 47 NLLR (PT 151) 33.

The law is long settled as evinced in a plethora of case laws/authorities that where an employee is complaining of wrongful suspension, the terms and conditions governing his employment has to be construed to determine the rights and obligations under the contract. See EZENWA V K.S.H.S.MB [2011] 9 NWLR (PART 1251) P.89. The legal consequence of suspension is determinable from the terms of employment. The employer can also suspend the employee with or without pay or half pay but if the suspension is vindictive it would be actionable see Mrs. Abdulrahaman Yetunde Mariam V. University of Ilorin Teaching Hospital Management Board& anor [2013] 35 NLLR (Pt 103) 40.

In the instant suit, Exhibit DR 4 does not disclose that the defendants can suspend the Claimant without pay.

The said Offer Letter (Exhibit DR4) did not make provision for suspension or give the employer the right of suspension at all. The main concern of the Court is whether or not the employer has the power to suspend the employee, and it does this by examining the terms of contract binding them as the terms are the foundation upon which the contract rests. It is trite that parties are bound by the terms of the agreement between them. See Adetoro v. Union Bank of Nigeria Plc [2007] LPELR-8991 (CA). A keen perusal of Exhibit DR4 which embodies the contract of Employment, and particularly Clause 13, provides thus:

‘During the period of probation, either party may terminate the contract of employment upon 30 days notice to the other. If the Company requests, you will continue to perform your duties and be paid your regular salary up to the date of termination. After the confirmation of employment, either party may exercise the right to terminate this agreement by sixty (60) days written notice to the other.”

The implication of which is that parties never envisaged or intended that the employer in this case can suspend the claimant for disciplinary purpose not to talk of suspension without pay. It then means that the suspension of the claimant by the defendant is in breach of the contract of employment, ditto the suspension without pay. A person unlawfully suspended from work can seek redress in Court and claim his full salary see ACB Ltd v. Ufondu [1997] 10 NWLR (Pt.523) 169 CA. In S.P.D.C.V. EMEHURU, [2006] LPELR 7728 where the plaintiff was placed on suspension for about two years, the Court held as follows:

“When an employee is placed on suspension he is placed on hold, he lives day by day in anticipation of either being recalled or laid off.  He is not at liberty to utilize his time elsewhere nor as he desires until after closing hours.  This was the exact disability placed on the respondent by the term of page 2 the letter of suspension from duty dated the 7th June, 1994…to have kept an employee on suspension for that long is in fact, unjustified, cruel and unduly oppressive.” – Pg 192 – 193.

I therefore find premised on the above that the claimant’s suspension for 51 months without pay by the defendants is wrongful and unjustified.

Having said this, what is the status of the claimant’s employment? It is on record that there is no letter of termination/dismissal issued to the defendant in this case. It however seems to me that the employment has been determined by the conduct of the defendants in this case, as it is obvious that they do not want him in their employment anymore. This Court will constructively therefore determine this employment between the claimant and defendant on the 2nd of August, 2018 when this suit was initiated.

Sequel to this, as provided in clause 13 of Exhibit DR4 cited above, in terminating the employment of the claimant he is entitled to sixty days notice. The defendants having failed to give him the said notice will be required to pay him salary in lieu of notice for the period of sixty days.

A look at Exhibit DR15 reveals the last salary paid to the claimant as ₦830,108. 67k (Eight Hundred and Thirty Thousand, One Hundred and Eight Naira, Sixty Seven Kobo). The claimant is therefore entitled to;

₦830,108.67 x 2 = ₦1,660,217.34 (One Million, Six Hundred and Sixty thousand, Two Hundred and Seventeen Naira, Thirty Four Kobo) as salary in lieu of notice. I so hold.

On issue three, the claimant claims the following against the defendants:

  1.             A sum of N18,666,666 being the total sum of leave bonus due to be paid to the claimant from year 2004 – 2018.
  2.             A sum of N68, 000,000 being the claimant salaries from March 2013 – August 2018.

Hence, the total sum claim is as stated below:

N18,666,666

N68,000,000

 

N86,666,666

(Eighty Six Million, Six Hundred and Sixty Six Thousand, Six Hundred and Sixty Six Naira). I have earlier held that the claimant in this case was constructively dismissed in August, 2018, and his last paid salary vide Exhibit DR15 is ₦830, 108.67 per month Thus the claimant is entitled to his salary for 51 months for the period of the suspension as reasoned above, from the time of his suspension April 2014 – August 2018 and calculated as follows:

Salary per month      –     ₦830,108.67k

Salary for 51 months     ₦830,108.67k  x 51 (months) = N42,335.542.17k

Total sum                                                                          N42,335.542.17k

Thus the claimant is entitled to the sum of N42,335,542.17k (Forty Two Million, Three Hundred and Thirty Five  Thousand, Five Hundred and Forty Two  Naira, Seventeen Kobo) to be paid by the defendants.  On the claim for salaries in lieu of leave, it is trite that he who asserts must prove, see Section 131 of the Evidence Act. The claimant in this case, has not shown by any shred of evidence this case in proof of his entitlement to the sum claimed as leave allowance, thus this leg of the claim fails.  I so hold.

For the avoidance of doubt, I hereby declare and order as follows:

  1. The claimant’s employment is deemed to have been determined constructively in August, 2018 by the defendants.

 

  1. The claimant is entitled to ₦1,660,217.34k (One Million, Six Hundred and Sixty Thousand, Two Hundred and Seventeen Naira, Thirty Four Kobo) as his salary in lieu of notice to be paid by the defendants.

 

  1. The claimant is entitled to the sum of N42,335.542.17k (Forty Two Million, Three Hundred and Thirty Five Thousand, Five Hundred and Forty Two Naira, Seventeen  Kobo) to be paid by the defendants as his salary for the period he was suspended i.e. 51 months.

 

  1. All sums awarded in this judgment is to be paid within 30 days from the date of this judgment, failing which 10% (ten per cent) interest per annum is to be paid on the judgment debt/sum until same is finally liquidated.

I make no order as to cost.

Judgment is accordingly entered.

 

 

Hon. Justice A. A. Adewemimo

Judge

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