IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: MARCH 20, 2019 SUIT NO. NICN/LA/412/2014
BETWEEN
Mr Usanga Eyo Brian – Claimant
AND
Polaris Bank Limited – Defendant
REPRESENTATION
Ike Ugwoke, for the claimant.
Olabisi Makanjuola, with O. E. Ehimony and M. Kalesanwo, for the defendant.
JUDGMENT
1. The claimant had filed this case on 15th September 2014 against Mainstreet Bank Limited. By order of this Court on 11th February 2016, the name of the defendant was changed to Skye Bank Plc; and by another order of this Court of 6th December 2018, the name of the defendant was further changed to Polaris Bank Limited. In consequence, by the claimant’s amended complaint and the accompanying statement of facts, list of witnesses, written statement on oath, list and copies of documents to be relied upon at the trial, the claimant is paying for the following relief:
(a) An order entering judgment for the claimant against the defendant in the sum of N11,498,738.34 (Eleven Million, Four Hundred and Ninety-Eight Thousand, Seven Hundred and Thirty-Eight Naira, Thirty-Four Kobo) being the total amount for the eight (8) months salaries and allowances owed to the claimant by the defendant.
(b) The sum of N2,000,000.00 (Two Million Naira only) being the legal fees for the prosecution of this suit.
(c) An order entering judgment for the claimant against the defendant in the sum of N200,000.00 (Two Hundred Thousand Naira) only spent by the claimant in transportation while representing the defendant in court and going to the customers’s office to recover the said loan.
(d) An order entering judgment for the claimant against the defendant for the sum of N10,000,000.00 (Ten Million Naira) only as general damages for injuries of financial hardship, mental torture and psychological trauma suffered by the claimant as a result of his 8 months unlawful suspension and refusal/failure of the defendant to pay his salaries and allowances.
(e) Interest on the claimed sum of N11,498,738.34 at the rate of 26% per annum from the 11th day of January, 2011 when the claimant was recalled from suspension until judgment is given and thereafter, 24% interest per annum on the judgment sum till it is finally liquidated.
(f) An order setting aside the suspension of the claimant from duty by the defendant on the 23rd day of April, 2010.
(g) Cost of this action.
2. The defendant’s consequential amended statement of defence, witness deposition on oath, list of witness, list of documents and copies of documents were all filed on 11th May 2016. In response, the claimant filed on 28th September 2016 his reply to defendant’s consequential amended statement of defence, a witness statement on oath and a 2nd written statement on oath.
3. At the trial, the claimant called two witnesses: the claimant himself, who testified as CW1; and Okusanya Samuel Olukayode, a businessman, who testified as CW2. The claimant’s frontloaded documents were admitted through CW1 and marked as Exhibits C1 to C20. The defendant on its part called Paul Animashawun, an Employee Relations Officer of the defendant, as its sole witness, and who testified as DW. The defendant’s frontloaded documents were admitted through DW and marked as Exhibits D1 and D2.
4. At the close of trial, parties, starting with the defendant, were directed to file and serve their respective final written addresses. The defendant did not file its final written address and so the claimant filed his as enjoined by Order 45 Rule 11 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017). On the day for adoption of written addresses, the defendant did not show up in Court nor was it represented by counsel. The claimant was accordingly allowed to adopt his final written address, the defendant having been foreclosed in accordance with Order 45 Rule 12 of the NICN Rules 2017. While the importance of addresses from counsel cannot be over-emphasized as was held in Bosma & ors v. Akinole & ors [2013] LPELR-20285(CA), by Nicholas Elumeziem & ors v. Boniface Amadi [2014] LPELR-22459(CA), “where a counsel failed or refused to address the court, it is not the duty of court to impose on such counsel”.
5. To the claimant, he was a staff of the defendant from 4th May 1981 to 22nd June 2012, having started work with the defendant’s predecessor, International Bank for West Africa (IBWA) Ltd as a clerk. The name of IBWA Ltd was changed to Afribank Nigeria Plc until August 2011 when Mainstreet Bank Limited acquired the assets and liabilities of Afribank Nig Plc and it became known as Mainstreet Bank Ltd. On 29th June 2015, Skye Bank Plc took over the assets and liabilities of Mainstreet Bank Ltd; and on 21st September 2018, Polaris Bank Ltd took over the assets and liabilities of Skye Bank Plc. The claimant rose to the position of Principal Manager.
6. In 2008, a customer known as Victorious Army Ministries (VAM) applied for a credit facility through the defendant’s Oregun Road Branch where the customer’s account was domiciled. The branch processed the credit application, recommended it avoidably and thereafter forwarded same to the commercial banking department at the defendant’s Head Office. The customer’s loan application was in the normal course of events referred to the claimant’s desk. The claimant processed it and passed on his recommendation as regards the loan application to his then General Manager who supported the request and same was finally approved by the defendant’s Executive Management and disbursed to the customer, who utilized the credit facility and repaid same fully within the approved period of 6 months. Shortly after repaying the loan, the customer, VAM, applied for another credit facility in the sum of N80 Million only for a duration of 6 months. The application was gains processed through the branch and forwarded to the defendant’s Head Office, where it was once again assigned to the claimant for further processing. This he did and made recommendations to the defendant’s General Manger and then to the Executive Management who finally approved same after ensuring that due process for such approval was observed. VAM utilized the loan but at the end of the 6 months period, it was unable to pay off in line with the terms of approval and this led to the classification of the credit facility as non-performing.
7. On 23rd April 2010, the defendant directed through a letter of suspension from duty that the claimant should proceed on suspension to recover the exposure of the bank to VAM because the record of the defendant shows that the claimant caused the branch to grant overdraft to his church, VAM, without ensuring that proper security is in place. The claimant stayed for 8 months in suspension. During the period of suspension, he, however, approached VAM for repayment of the loan and VAM started making payment to the defendant until it fully repaid the loan together with accruing interest. Additionally, while the claimant was on suspension, he was mandated by the defendant to represent the defendant in a suit at the Federal High Court in Forget Nig Ltd v. Afribank Nig Plc Suit No. FHC/L/CS/103/2006.
8. The defendants hinged their defence on the twin issues of privity of contract and separate legal personality.
9. The claimant submitted four issues for determination, namely:
(1) Whether Mainstreet Bank Limited took over the assets and liabilities of Afribank Nigeria Plc.
(2) Whether the suspension of the claimant by the defendant for eight (8) months is wrongful and unlawful.
(3) Whether the claimant should be denied the payment of his salaries and allowances having not been found guilty of any misconduct.
(4) Whether the claimant is entitled to the reliefs sought.
10. On issue (1), referring to paragraphs 4, 5 and 22 of the amended statement of facts as well as paragraphs 2 to 6 of the reply to the amended statement of defence and Exhibits C18, C19 and C20, the claimant argued that Afribank Nig Plc became Mainstreet Bank Ltd, which later became Skye bank Plc. In contrast, the defendant in paragraph 7.5 stated that Mainstreet Bank neither took over nor assumed the employment liabilities of Afribank and, therefore, is not liable for the acts or omissions of Afribank. To the claimant, he elected vide exhibit C18 to be an employee of Mainstreet Bank and so his employment continued with Mainstreet Bank from Afribank, citing Joseph Adegoke Adekanmbi v. Skye Bank Plc unreported, the judgment of which was delivered by Kola-Olalere J on 17th February 2016 at the Ibadan Division of this Court. The claimant equally referred to Exhibit C19, wherein he was paid N4,428,068.03 as 100% gratuity by the defendant upon the termination of his employment with Mainstreet Bank on 22nd June 2012. That the payment of this gratuity can only mean that the defendant has privity with the claimant; for without privity, it would not have made the payment even if ex gratia, citing Joseph Adegoke Adekanmbi v. Skye Bank Plc. Furthermore, that Exhibit C20 introduced CW2 to the British Deputy High Commission as having joined the services of Bank on 9th November 1992, a date that CW2 could only have been employed by Afribank since by paragraphs 7.1 to 7.4 of the amended statement of defence, the defendant pleaded that Mainstreet Bank was incorporated on 3rd August 2011. In any event, that a company can take over the assets and liabilities of another irrespective of when the acquiring company was incorporated. The claimant the submitted that the defendant took over the assets and liabilities of Afribank and continued the business hitherto carried on by Afribank and, therefore, is liable for the acts and omissions of Afribank.
11. For issue (2), the claimant submitted that the foundation of his case is the impropriety of his suspension from work for 8 months without pay, which suspension was an act of harassment and victimization, unnecessary in the circumstances. The claimant referred to paragraph 13 of the amended statement of facts, and Exhibits C11 and C13. That given paragraph 2 of the defendant’s amended statement of defence, it is obvious that the defendant did not specifically deny the claimant’s paragraph 13 and so is deemed to have admitted same, citing Okunola v. Eiyekole [1990] 4 NWLR (Pt. 146) 632 at 646 and Oshodi v. Eyifunmi [2000] 13 NWLR (Pt. 684) 298 at 337. Also that the defendant did not adduce evidence challenging the averment of the claimant that his suspension was wrongful and unlawful. In proof of his assertion that his suspension was wrongful, the claimant referred to Exhibits C8, C11 and C13 and then submitted that: he merely recommended the loan of N80 Million to VAM in the normal course of his duty; he was not even a part of the Oregun branch of the defendant where the loan was sourced; he was not part of the approval committee; he did not manipulate or control the standard procedure for the grant of such a loan; and in Exhibit C14, which is the defendant’s reply to the claimant’s Exhibit C13, the defendant did not refute the facts in Exhibit C13, citing Vaswani & anor v. C. A. Candide Johnson Esq [2001] 11 NWLR (Pt. 679) 582.
12. The claimant went on that from the letter of suspension, Exhibit C2, there is no allegation of fraud. Instead, the reason adduced in Exhibit C2 for the suspension is: “…having caused the branch of grant overdraft facility to your church, Victorious Army Ministries without ensuring that proper security is in place”. To the claimant it is coincidental that he belongs to this church, and the charge of causing the branch to grant overdraft facility was never substantiated. That he was neither queried nor taken before a disciplinary committee during and after the suspension contrary to the dictates of section 36(1) of the 1999 Constitution. That it is thus wrong to hold him responsible for a decision taken by the defendant’s management in granting credit facilities to its customers; as such, the claimant wondered where the defendant derived the power to suspend the claimant without pay over non-performing credit that he did not grant.
13. To the claimant, it does not lie in the mouth of the defendant to canvas any issue regarding relief (f) having not specifically traversed and/or led evidence to contradict the wrongfulness and unlawfulness of the claimant’s suspension, citing Obasuyi v. Business Ventures Ltd [2000] 5 NWLR (Pt. 658) 668 at 690, Sanyaolu v. INEC [1994] 7 NWLR (Pt. 612) 611 and Vassilev v. Pass Industry Ltd [2000] 12 NWLR (Pt. 681) 347 at 355. The claimant then urged the Court to set aside his suspension.
14. Regarding issue (3), the claimant referred to Exhibit C2 and then submitted that the defendant failed to justify the allegation therein against the claimant. The claimant then denied causing the Oregun branch to grant credit facility to VAM without ensuring that adequate security is in place for the facility as he was neither an approving authority nor involved in disbursement. He referred to Amusa Yusuf v. Volkswagen of Nig Ltd [1996] 7 NWLR (Pt. 463) 746 at 748. The claimant urged the Court to note that after he recovered the entire loan and interest of about N44 Million, he was recalled from suspension and cleared of any blameworthiness by the Remedial Unit of the defendant (amounting to exoneration), but the defendant did not deem it fit tomboy his salaries and allowances. The claimant accordingly prayed for the payment of his 8 months salaries and allowances.
15. Issue (4) is whether the claimant is entitled to the reliefs sought. Here the claimant treated each relief separately. Relief (a) prays for N11,498,738.34 being the value of 8 months salaries and allowances. To the claimant, once the Court agrees with him that Mainstreet Bank took over the assets and liabilities of Afribank, that his suspension was wrongful and that he was not found guilty of any misconduct, then he is entitled to the payment of his salaries and allowances during the duration of the suspension by the defendant.
16. Relief (b) prays for N2 Million being legal fees for the prosecution of this suit. To the claimant, the defendant did not in any way controvert the specific points of facts in paragraphs 24, 25 and 27 of the amended statement of facts; as such the defendant must be deemed to have admitted he said facts, citing section 122(2) of the Evidence Act 2011, Biezan Exclusive Guest House Ltd v. Union Savings & Loans Ltd [2011] 7 NWLR (Pt. 1246) 246 at 285 and Aromolaran v. Oladele [1990] 7 NWLR (Pt. 162) 262 at 368. That the attempt to discredit the claimant’s evidence particularly Exhibit C15 is an act of clutching at straws like the proverbial drowning man and avails nothing. That having not specifically repudiated the material facts stated in the amended statement of facts, the evidence purportedly elicited from CW1 with respect to Exhibit C15 goes to no issue, citing Union Bank Plc v. Sparkling Breweries Ltd [1997] 3 NWLR (Pt. 491) 29 at 51. That he is, therefore, entitled to the N2 Million legal fee claimed.
17. Relief (c) is a claim for N200,000 spent by the claimant in transportation while representing the defendant in Court and going to the customer’s office to recover the said loan. That he made 7 court appearances. That at the time of his visits to the defendant’s counsel visits at Dolphine Estate, Ikoyi, Lagos he was living at Ojodu, a Lagos suburb and border community with Ogun State. That on one of such trips, his car developed engine problem and he spent over N100,000 to repair it, referring to Exhibits C8 and C3 as well as Exhibit C14, where the defendant admitted this expense and requested the claimant to forward his claim for management approval. That he is accordingly entitled to the said N200,000.
18. Relief (d) is a claim for N10 Million being general damages for injuries of financial hardship, mental torture and psychological trauma he suffered as a result of his 8 months unlawful suspension and refusal of the defendant to pay his salaries and allowances. That he fell sick as a result of the wrongful suspension and refusal to pay his salaries and allowances within the said period. That his claim for damages is necessarily concomitant and flowing directly from the extremely obnoxious and oppressive conduct of the defendant; and that the damages should be punitive and aggravated owing to the fact that the his suspension is ab initio unreasonable, unnecessary, wrongful and unlawful, citing Unipetrol Nig Plc v. Adireje (WA) Ltd [2005] 14 NWLR (Pt. 946) 563 at 632-633.
19. Relief (e) is a claim for interest on the sum of N11,498,738.34 claimed, which sum became payable since 11th January 2011 when the claimant was recalled from suspension but the defendant willfully refused to do the needful. That while on suspension, he borrowed money from friends and relatives to feed himself and family, pay his children’s school fees, pay utility bills and also transport himself to the Federal High Court and obviously have been paying interest on same since then. That the claim for interest is based on the equitable jurisdiction of the Court and so he is entitled to it.
20. Relief (f) is a claim for setting aside his suspension. That in his argument relating issue (2), he established that his suspension was unlawful and so it should be set aside. Relief (g) is for cost. The claimant concluded by urging the Court to grant all his reliefs.
COURT’S DECISION
21. I have carefully considered the processes filed and the submissions of the parties. The claimant referred to two unreported case law decisions without as much as providing the certified copies of the said judgments contrary to Order 45 Rule 3(1) of the NICN Rules 2017. The two decisions are: Joseph Adegoke Adekanmbi v. Skye Bank Plc and Gogo Chimaroge Anyanwu v. UBA Plc unreported Suit no. LD/357/07, the judgment of which was delivered on 8th November 2010. As her Ladyship Augie, JSC put it in Major General Kayode Oni (Rtd) & 4 ors v. Governor of Ekiti State & anor unreported Suit No. SC.622/2015, the judgment of which was delivered on 18th January 2019:
It is an elementary principle, very elementary, that Counsel who want the Court to make use of authorities cited in Court must provide the name of Parties, the year the case was decided, and where the case is reported, name of the Law Report, the year, volume and page must be cited. But if the said case is unreported, Counsel must provide the Court with a certified true copy of the Judgment sought to be relied upon – see Chidoka & anor v. First City Finance Co. Ltd [2013] 5 NWLR (Pt. 1344) 144 and Ugo-Ngadi v. FRN [2018] LPELR-43903(SC)…
The said authorities cited by the claimant shall accordingly be discountenanced for purposes of this judgment.
22. Reliefs (a), (b), (c) and (e) are claims for special damages. The law, by Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, is that a claim is circumscribed by the reliefs claimed; and the duty of a plaintiff, therefore, is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. And in several decisions of this Court, it has been held that an employee making a claim in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. See Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017 and Stephen Ayaogu & 16 ors v. Mobil Producing Nigeria Unlimited & anor unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017. To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017 and Mr Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. To prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for “entitlements and/or benefits”, being monetary sums, is a claim for special damages. See Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014 the judgment of which was delivered on 24th January 2017. To succeed in a claim for special damages, it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC), Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). The claimant has a duty to give specific particulars of the special damages he is claiming. This is to enable the opposing party know what he is to meet in the case. See AG, Anambra State v. CN Onuselogu Enterprises Ltd [1987] LPELR-614(SC); [1987] NWLR (Pt. 66) 47; [1987] All NLR 579; [1987] 9 – 11 SC 197 and Marine Management Associates Inc. & anor v. National Maritime Authority [2012] LPELR-206(SC).
23. Has the claimant accordingly proved each of reliefs (a), (b), (c) and (e)? Relief (a) is a claim for N11,498,738.34 being 8 months salary and allowances owed to him by the defendant in terms of the period he was suspended. The law regarding suspension is that while on suspension, an employee remains an employee. See Bernard Ojeifo Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1. And the suspended employee is entitled to his emoluments unless the conditions of service provides otherwise. The English cases of Hanley v. Pease & Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653 have it that employers cannot suspend 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 up upon itself 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 Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC. Exhibit C2 dated 23rd April 2010 is the letter suspending the claimant for “causing the Branch to grant overdraft facilities to your Church…without ensuring that proper security is in place for the facility which has now led to the exposure of the bank to the tune of N71,116,331.36 as at 30/11/20109”. The claimant was thereby asked “to proceed on suspension to pursue recovery with immediate effect”. Exhibit C2 is silent on whether the claimant’s suspension was without pay. The assumption, therefore, is that the suspension is with pay since the defendant cannot suspend without pay in the absence of clear provisions to that effect in the conditions of service. The defendant supplied no conditions of service to prove that its can suspend without pay under the said conditions of service. The claimant asserts that while on suspension, the defendant did not pay him his salaries and allowances. The burden is on the defendant to prove that it paid the said salary and allowances to the claimant during the period of suspension since it did not show that it is covered by the conditions of service not to pay. By Honika Sawmill (Nig.) Ltd v. Holf [1992] 4 NWLR (Pt. 238) 673 CA, as between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period. It is then for the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period but also how much the salary that he paid the employee was. The moment the defendant was certain that the claimant recovered over 88% of the amount outstanding on the account of VAM, it recalled the claimant from suspension vide Exhibit C17 dated 17th January 2011.
24. In paragraph 28 of the statement of facts and paragraph 29 of the written statement on oath, the claimant pleaded and deposed to the particulars of special damages that make up the N11,498,738.34 he claims as per relief (a). The particulars are made up of basic salary, housing allowances, lunch allowance, transport allowance, domestic servant, beverages, education allowance, fuel, furniture allowance, Gen Set MTCE, house MTCE, medical allowance, responsibility, satellite MTCE, telephone bills, utility allowance, vehicle MTCE, yearly leave allowance, yearly passage allowance, yearly 13th yearly Christmas Bonus and performance based bonus. All these are items of special damages that must be strictly proved as I indicated earlier. What is the instrument(s) from which the claimant has these heads of claims as entitlements? The claimant showed none to this Court. Instead, he relied heavily on the pleadings arguing that the defendant did not controvert his pleadings and so must be deemed to have admitted his claims. The claimant seems to forget that the fact that special damages appear to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence as held in NNPC v. Clifco Nig. Ltd, Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors and 7UP Bottling Company Plc v. Augustus (all supra).
25. The claimant tendered Exhibit C4, the collective agreement between the Nigerian Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) of 2005. The question that arises here is whether the claimant can rely on Exhibit C4 given that he was a senior staff in the rank of Principal Manager. The claimant can rely on Exhibit C4 only if he shows that he is a member of ASSBIFI. This Court has in several cases shown what a senior staff (ASSBIFI is a trade union for senior staff) must prove in order to benefit from a collective agreement. It is that he must plead and prove by concrete evidence membership of the trade union in issue; and that the admission of an employer to that effect is not even enough. See Aghata N. Onuorah v. Access Bank Plc [2015] 55 NLLR (Pt. 186) 17, Samson Kehinde Akindoyin v. UBN Plc [2015] 62 NLLR (Pt. 217) 259, Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/122/2014, the judgment of which was delivered on 12th July 2016, Mr C. E. Okeke & 3 ors v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/09/2010, the judgment of which was delivered on 26th October 2016, Mrs Benedicta Uzoamaka Marchie v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/48/2014, the judgment of which was delivered on 30th March 2017 and Mrs Bessie Udhedhe Ozughalu & anor v. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20th March 2018. A look at the statement of facts will show that there is no pleading whatsoever that the claimant is a member of ASSBIFI. So the claimant cannot rely on Exhibit C4, the collective agreement for anything; not even in terms of paragraph 17 of the statement of facts and paragraph 17 of the written statement on oath. Relief (a) must accordingly fail for lack of proof. It is accordingly dismissed.
26. Relief (b) is for N2 Million being legal fees. Exhibit C15 is the invoice for the said N2 Million. Under cross-examination, the claimant as CW1 testified that he paid N2 Million to his solicitor in cash; and that when he made the payment, he was not given a receipt. How can N2 Million be paid to a law firm and a receipt is not given? I do not believe that the claimant made any such payment. Accordingly, relief (b) must fail. It is hereby dismissed.
27. Relief (c) is a claim for N200,000 “spent by the claimant in transportation while representing the defendant in court and going to the customers’s office to recover the said loan”. This is a claim for special damages. How did the claimant come by this sum? The Court is not told. The claimant claims that he spent over N100,000 in repairing his car. No documents in this regard was tendered. The claimant contends that the defendant admitted liability under this head vide Exhibit C14 dated 20th March 2012. All the defendant wrote in Exhibit C14 is that the claimant “may wish to forward the bill you incurred attending the (7) seven court sessions to enable us present same to management for approval”. No such bill forwarded has been shown to this Court. And submitting a bill for onward transmission to management for approval cannot be read to mean the approval. Relief (c) must accordingly fail. It is hereby dismissed.
28. The failure of relief (a) means that reliefs (d) and (e) cannot be granted. They are accordingly dismissed.
29. Relief (f) is for an “order setting aside the suspension of the claimant from duty by the defendant on the 23rd day of April, 2010”. This relief calls to question the lawfulness or otherwise of the suspension of the claimant. The claimant argues that his suspension was unlawful. The duty is thus on him to prove the unlawfulness of the said suspension since he is the one who alleges that. Of course, an aggrieved employee has the right to approach this Court to challenge his/her suspension. The yardstick, however, for challenging the suspension is whether the suspension is necessary, reasonable, valid and hence lawful. See Mr. Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited [2015] 62 NLLR (Pt. 216) 40. In order words, the claimant will succeed only if he shows the suspension to be unnecessary, unreasonable, invalid and hence unlawful. Exhibit C2 dated 23rd April 2010 is the letter suspending the claimant for “causing the Branch to grant overdraft facilities to your Church…without ensuring that proper security is in place for the facility which has now led to the exposure of the bank to the tune of N71,116,331.36 as at 30/11/20109”. The claimant was thereby asked “to proceed on suspension to pursue recovery with immediate effect”. It is within the disciplinary powers of an employer to suspend an employee for purposes of investigating an infraction or as punishment for an infraction. See Bernard Ojeifo Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1 and Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC. So it is within the disciplinary right and powers of the defendant to issue Exhibit C2. It is for the claimant to show that the defendant acted unreasonably in issuing Exhibit C2. The moment the defendant was certain that the claimant recovered over 88% of the amount outstanding on the account of VAM, it recalled the claimant from suspension vide Exhibit C17 dated 17th January 2011.
30. In proof of the wrongfulness of his suspension, the claimant referred to Exhibits C11 and C13. Exhibits C11 and C13 are letters from the claimant to the defendant; as such, they cannot be proof of any wrongfulness of the suspension. The claimant complained of the absence of fair hearing in terms of his suspension, which thus made his suspension bizarre and suspicious. The authorities are, however, pretty clear that when it comes to suspension, the question of fair hearing and/or natural justice is immaterial. For instance, Longe v. FBN Plc (supra) held that the suspension of an employee when necessary cannot amount to a breach of the employee’s fundamental or common law rights. See also Ayewa v. University of Jos [2000] 6 NWLR (Pt. 659) 142, Akinyanju v. University of Ilorin [2005] 7 NWLR (Pt. 923) 87 and Shell Pet. Dev. Co. v. Lawson Jack [1998] 4 NWLR (Pt. 545) 249. As it is, the claimant has not been able to prove that his suspension was unnecessary, unreasonable, invalid and hence unlawful. Relief (f) accordingly fails and so is hereby dismissed.
31. On the whole, I see no merit in the claimant’s case. It fails and so is hereby dismissed.
32. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
