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MRS. OLUFEMI-ADEYEMI FOLUSO v. ENTERPRISE BANK LIMITED (2019)

MRS. OLUFEMI-ADEYEMI FOLUSO v. ENTERPRISE BANK LIMITED

(2019)LCN/13443(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of June, 2019

RATIO

LAWFUL WAYS OF TERMINATING A CONTRACT OF SERVICE

That where Adequate Notice or payment in lieu of Notice are lawful ways terminating a contract of service with or without reasons, the Court will act on it. SeeUniversity of Maiduguri Teaching Hospital Management Board & Anor v. DAWA (2002) FWLR (pt. 108) 1402 at 1419 CA 20 but in this case, where notice is required, Notice or payment in lieu is a condition precedent, and must be fulfilled. Friday Abalogu v. Shell Petroleum Development Company of Nigeria Limited (2003) 6 SC (pt. II) 19; at 37 and the termination in the manner unwarranted by the contract was answerable in damages. Samson Babatunde Olanrewaju v. Afribank Plc (2001) 7SC (pt. II) 1 at 20 Olatunbosun v. Niser Council (1988) 3 NWLR (pt. 80) 25, UNTHB v. NNOLI (1994) 8 NWLR (pt. 363) 376 that on the above authorities, we should declare the termination as wrongful and unlawful. PER DANJUMA, J.C.A.

WHETHER OR NOT AN EMPLOYER IS OBLIGED TO GIVE A REASON FOR DISMISSAL OF AN EMPLOYEE

It is true that an employer is not obliged to give any reason for dismissal of an employee, but once reasons are given and disputed in Court, the onus lies on the employer to justify the reasons by evidential proof. See NEPA v. Adeyemi (2007) 2 NWLR (pt. 1021) P. 315 at PP. 331 332. PER DANJUMA, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): I shall introduce this appeal by reproducing the subject and details thereof as set out in the Appellants Brief of Argument. I shall however, not be infected with the emotive expressions in what should be a narration of facts only.

This is an appeal from the National Industrial Court of Nigeria Akure Division, Ondo State. The judgment was delivered on the 31st day of May 2017 by Hon. Justice A. N. Ubaka, see pages 229 262 of the record of appeal.

The appellant brought this suit by a General form of complaint, Order 3 Rule 1 of the National Industrial Court of Nigeria, dated 30th January, 2015 which include the statement of fact, sworn statement on oath at the trial Court; see pages 1 34 of the record of appeal.

Sequel to Exhibit P (disengagement letter) dated 16th January 2015, but served on the claimant on the 27th February, 2015 at about 08.30am, the Appellant decided to amend her writ of summons and statement of claim through motion on notice at pages 78-82 and 93-101 of the record of appeal.

CLAIM OF THE CLAIMANT

The claimant in this case claimed as follows:-

a. A declaration that, the purported suspension and disengagement letters served on the claimant suspending and disengaging her from employment of the defendant via letters reference No.EBH/HCM/EMPYRLTNS/2015/16/EO dated 16th January, 2015 and suspension letter dated 22nd March 2013 are unlawful, invalid, null, void and of no effect whatsoever and howsoever.

b. An order of this Honourable Court setting aside the letter of suspension from HUMAN CAPITAL MANAGEMENT dated March 22nd 2013 bearing SUSPENSION RE: FRAUDULENT TRANSFER OF (N22, 9000, 000. 00) via THE NIP FAST PLATFORM and DISENGAGEMENT letter reference No EBH/HCM/EMPYRLTNS/2015/16/EO dated 16th January 2015 by which defendant purportedly terminates the claimants appointment.

c. An order of this Honourable Court directing the defendant to pay claimant all her monthly salaries and allowances from 22nd March 2013 to 21st February, 2015 amounting to Twelve Million Three Hundred and Eighty Five Thousand Four Hundred and Sixty Seven Naira Thirty One Kobo. As per. Banking OFFICER PAY ITEMS attached to Exhibit C EMPLOYMENT PARTICULARS and other salaries and allowances entitle to her until judgment is given.

d. An order of this Honourable Court compelling the Defendant to restore and/or re-instate the claimant to her post as a Banking OFFICER without prejudice to normal promotions, allowances and other entitled to in the ordinary course of her employment in the service of the Defendant

e. Alternative to relief d above. The sum of Fifty Million Naira Only (N50,000,000.00) as general, aggravated damages, unlawful suspension and termination of the claimants appointment from the defendants service.

f. Interest at the rate of twenty one percent (21%) per annum on the judgment debt until the full satisfaction of the judgment debt.

FACTS OF THE CASE

The Appellant was employed in 1996 as a clerk by Owena Bank but later changed her name to Omega Bank Plc and in 2006 Omega Banks name was changed again to Spring Bank Plc. While at Omega Bank, the Appellant earned various promotions and rose to the position of supervisor and Banking officer. As a result of the promotion to Banking Officer, Appellant became Senior Officer in accordance with the banks regulation. Appellant was given letter of employment tagged CONTRACT OF EMPLOYMENT commencement date of 1st February, 2006.

In 2011, Spring Bank Plc became Enterprise Bank Limited and Appellant was given a letter CAPTIONED OFFER OF EMPLOYMENT IN ENTERPRISE BANK LIMITED REF NO. EBL/AK/NCM/2011/00835 dated October 22nd 2011 as BANKING OFFICER PAY ITEMS including EMPLOYMENT PARTICULARS attached to it including BANKING OFFICER PAY ITEMS. All this can be seen on pages 16, 17, 18 and 19 of the Records of Appeal. See Exhibits C, D1, D1 and E.

Appellant has been performing her duties diligently and loyally, until when she went on her outstanding leave of ten (10) days which she applied for on 25th February, 2013 and approval was granted on 27th February, 2013 at about 4.33pm see Exhibit F on page 20 of the record of appeal. The approval to proceed on leave did not come to the Appellant until 4.33pm of 27th February, 2013. It is very imperative that Appellant must hand over to someone before proceeding on leave and she cannot use only 27 minutes to prepare handing and taking over notes because of the sensitive aspect of her duties hence she came to the office on 28th February, 2013 which was Thursday to do the handing and taking over note properly before proceeding on her leave on 1st March 2013. See Exhibit c on page 21 of the record of appeal.

On page 23 of the record of appeal, that is, exhibit F is the RE-EBL FAST PAY WITH PIN VENDING MODIFICATION which was where the officer in charge of disabling and enabling. The EBL FAST PAY WITH PIN VENDING MODIFICATION was informed that Appellants letter of DISABLING of RE-FINANCE MODIFICATION FORM be acted upon but not acted upon by Nnenna Akubue as requested. She only acted on the reminder which is at page 22 of the record of appeal, exhibit f that DONE meaning that she has disabled the RE-EBL FAST PAY WITH PIN VENDING MODIFICATION otherwise called PERSONAL PROFILE of the Appellant.

Exhibit G is the handing and taking over, that page 21 of the record of appeal where the appellant handed over to MRS. OLUWAYOMI COMFORT TITILAYO and executed by Alabi Taye the auditor of the defendant. The Appellant duly informed the defendant at page 23 of the appeal that she would be proceeding on leave 28th February 2013 at about 4.15p.m and that her RE-EBL FAST PAY WITH PIN VENDING MODIFICATION, otherwise called PROFILE be disabled and enable the officer taking over to perform her duties. This was not done within four days, after the appellant had proceeded on leave by the officer who is supposed to do so, that is, NNENNA AKUBUE until a reminder was sent to her on 4th March 2013 by the relieving officer MRS. COMFORT OLUWAYOMI. See page 22 of the record of appeal.

The Appellant having handed over to MRS. COMFORT OLUWAYOMI proceeded on her leave and her profile was disabled to enable her reliever to work. This was to be done by Nnenna Akubue which she did not do until 4th March, 2013 when reminder was sent to her and she replied DONE meaning that profile of the Appellant has been disabled and relieving officer enabled. See pages 22 and 23 of the record of appeal.

The Appellant was at home at Akure on the 8th March 2013 when she received a telephone call from the defendants

Headquarters at about 5. 30 pm that fraud was being committed with her profile at Olukayode Plaza branch Akure. She told the person that she was on leave and the Appellant was again called by the Branch Manager Mr. Oladimeji Oluwadare and Bassey Philips, the resident Auditor, that Appellant should come to the office. Appellant immediately went to the office and met the officers where the fraud is still going on in the system. The Branch Manager called the defendant Headquarters to inform them officially.

Right from there, the Appellant was taken to Police Station, where the case when reported and she was detained with two others at the Nigeria Police State A Division Akure. The case was later transferred to State Criminal Investigation Department, Nigeria Police Headquarters Akure for further investigation. It was during the investigation, the Police discovered the account to which the money was transferred and two culprits were arrested in person of Femi Fakuade and Saide Aina Adesida, both suspects were charged to Court after the Police visited defendants Headquarter to effect the arrest of NNENNA AKUBUE without success because the officers of the defendant did not co-operate with the police and the prime suspect was shielded from the Police. Also those suspects arrested and charged to Court at Akure, the defendants officer refused to come to Court to give evidence hence the suspect were discharged.

Because of the attitude of the defendant and shielding of the prime suspect, the Police could not get to the root of the case; see Police Report at page 25 28 of the record of appeal, it is also exhibit K. The Appellant was still on leave when an indefinite suspension letter was served on her. The letter of suspension headed internal memo dated 22nd March 2013 is Exhibit J at page 24 of the record of appeal.

The defendant made heavy weather that Appellant has access to her mail while on leave, if not, she could not come across all the documents she submitted as exhibits in this case. The Appellant was given his documents by the defendants employee at the Olukayode Branch Akure because she was copied and not that she printed it out from the system as alleged by the defendant. Assuming without conceding that she printed it out, it was the policy of the defendant to print out any documents concerning any of her staff and present it to them.

It was during the pendency of this suit, the defendant send a letter of dis-engagement through U. P. S. Courier Services on the 27th February, that she has been terminated. See Exhibit P.

The parties by their respective learned counsel had adopted their respective Briefs of Argument on the 7th March, 2019.

The Appellants Brief of Argument which was filed on 16 1-2018 but deemed filed and served on 7 3 2019 raised 3 (three) issues for the determination of the appeal, thus;

ISSUE ONE

Whether Appellant is not entitled to her salaries and allowances during the period of indefinite suspension without pay from 22nd March, 2013 till 27th February, 2015 when Respondent served Appellant with disengagement letter from its service.

This issue is tied to Ground 1 of the Notice of Appeal.

ISSUE TWO

Whether Exhibits D1 D2 which is the contract of employment between the claimant and Defendant cannot be relied upon as contained in the document and whether Defendant is obliged to adhere to the agreement contained therein (Ground 3)

ISSUE THREE

Whether a non suit cannot be granted where the Appellant has not fail (sic) in toto in front loading claimants condition of service ought not to have resulted in the dismissal of the Appellants case, more so when Exhibits D, and D2 was pleaded tendered and admitted in evidence and defendant was in possession of the condition of service (Ground 2)

On its part the Respondent raised 2 issues for determination thus:

i. Whether with regard to evidence and exhibits tendered at the trial and the existing master/servant relationship between the Appellant and the Respondent the lower Court was not right to have dismissed the claim of the Appellant on the salary arrears during the suspension without pay.

ii. Whether the trial Court was justified in dismissing the Appellants case in its entirety having regard to the totality of evidence, and exhibits adduced at the trial and whether exhibits D1 D2 tendered proved the case of the Appellant to entitle her to the claim.

The Respondents learned counsel preceded/precursed the argument of his appeal on the issues formulated by the argument in what seems like an objection to some grounds of the appeal. He contends that the Grounds 1 and 3 of the Grounds of Appeal are essentially and in reality one and the same issue and that raising 3 issues from the purported 3 Grounds of Appeal was in reality the raising of 3 issues for determination from 2 Grounds of Appeal as the similar Grounds 1 and 2 had fused, merged and being the same and was reckoned as one Ground of Appeal. That their particulars were the same.

That the 3 issues raised were incompetent as being more than the Grounds of Appeal. Relies on Ap. Ltd. v. Awodunmi (2003) 5 NSCQR 308.

That an issue can only arise from a Ground of Appeal and not otherwise. That one or more Grounds may constitute an issue and not that 2 issues to be distilled from, one Ground, as in this Appeal.

That issues 1 and 2 of the Appellant are incompetent and liable to be dismissed. Oyekan v. Akinrinwa (1996) 7 NWLR (pt. 459) 128 relied.

Issue 2 was incompetent as not related to any of the Grounds of Appeal and that it should be struck out or dismissed. Patience Omagbemi v. Guinness Nig. Ltd.(1995) 2 NWLR (pt. 377) 258; First Bank of Nigeria Plc. V. Musa Labbo (1996) 3 NWLR (pt. 438) 614; Kano iles v. Gbode Hoff Ltd (2005) 22 NSCQR 346.

It was also argued that the Notice of Appeal was defective as it is titled plaintiff and Defendant. That there is no competent Notice of Appeal as opposed to the Appellants Brief of Argument which is at variance with it.

That where a Notice of Appeal is defective and as the life wire of an appeal, it is incompetent. APP v. Ogunsola (2002) 5 NWLR (pt. 761) 484.

That amendment cannot be made of an incompetent Notice of Appeal Iyamu v. Aigbirenwen (1992) 2 NWLR (pt. 222) 233 @ 242 pars. B-D; Nurses Association v. A. G. Federation (1981) 11 12 SC1.

The Appellants learned counsel by his Appellants Reply to the Respondents Brief of Argument which he filed on 22 2-2018 and adopted at the hearing on 7 3 2019 raised the point that a preliminary objection is filed where there are fundamental defects in an appellants process and no grounds to sustain the appeal. That the Respondent had not shown any defect(s) as regards the processes and Appellant had complied with Order 7 Rule 2 of the Court of Appeal Rules 2016.

Concedes that a Notice of Appeal is the foundation of the appeal and a defect in the Notice of Appeal may render the whole appeal incompetent and the appellate Court will lack jurisdiction Nwoko v. Azekwo (2012) 12 NWLR (pt. 1313) the 170 par E.

The learned counsel, however proceeded to argue that the three Grounds of Appeal lodged are distinct and different from each other; he reproduced them and argued that the Respondent did not take into cognizance the residual statement that followed the phrases- action of the claimant in its entirety and dismissed the suit of the claimant which the Respondent underlined and harped on, as phrases common to the 2 Grounds of Appeal, complained against.

The learned counsel submitted on the authority of the case of Daniel v. INEC & Ors. (2015) 4 SCM 148 at 169 ratio A per Rhodes Vivour, JSC that a Notice of Appeal is competent and valid even if it contains only one valid ground of appeal. Section 253 (2) (a) of the Constitution.

The learned counsel reproduced the extract in extenso thus:

An appeal Court should be slow to reject the appellants issues. Once the Appellants issues relate to even a single ground of appeal, is simple and direct to the point and clearly reveals the grievance of the appellant, it should be adopted by the appeal Court for determination of the appeal. The grievance of the appellant from his sole surviving issue is that since the Court of appeal decided that he has locus standi, the appellants claim should have been granted and appellant declared the candidate of the PDP at the Governorship election in Akwa Ibom State, which held on April 26th 2011.

That the Grounds of Appeal and the issues for formulated in this appeal are respectively not the same. That in any case, 3 (three) issues were formulated from (three) 3 Grounds of Appeal. Relies on Musasha v. Kwan (2000) 2 SCNLR 802 @ 817-818 per Igu, JSC on the right of either party to formulate issues.

That the Court of appeal may formulate issues, adopt issue or reframe the issues in ways that it thinks may lead to proper determination of the appeal.

The learned counsel relied also on the case of F. R. N. v. Dairo (2015) 1 SCN page 125 at pages 144 145 pars D1, – AI per Nweze, JSC to contend that blunders may be made in litigation and being human, it will not be right except in appropriate cases, to make the party in the blunder to incur the wrath of the law at the expense of hearing on the merit, the case. The Apex Court had held that the trial Court was right in not making the Appellant, now respondent, to incur the wrath of the law rather than a hearing on the merit.

That the era of technicality was gone and that the Courts should do substantive Justice. I take it that it is a reference to substantial justice.

That nobody was above mistake and F. R.N. v. Dairo & Ors (supra) was commended.

That the Court can amend the irregularity in the appellations of parties and that this Court can do so suo motu.

The learned counsel aptly referred to F. A. T. B. v. Ezegbu (1994) 9 NWLR (pt. 367) 149 at 185 par. G H (CA) per Sulu Gambari, JCA as he then was that:-

On issue 7, learned senior advocate appears to have committed an error or allowed an error in typing to escape his vigilance (Notice) by calling Issue 7 the 8th issue but this minor numerical inexactitude in my considered view should not be allowed to blur the trend of arguments and barring any reason to the contrary, I take this title piece of oversight or mistake as amended and to read accordingly the 7th issue.

That the appellation be taken as a typographical error and over sight on the part of the Appellants counsel. That the preliminary objection be dismissed.

I shall proceed with the preliminaries, as argued. It is apparent that the Respondent did not file a Notice of Preliminary objection as per the Rules of this Court ordained.

He has also not raised in the Respondents Brief of Argument any preliminary objection with the specificity in name or title nor urged that the appeal be dismissed for incompetence on that ground or reason.

What the Respondent has done is to argue at large on specific areas of the Notice of Appeal and the title of the case as relating the Appellation of the parties as plaintiff and Defendant; on this score, this Court will be at liberty to discountenance those arguments as a Court of law is not a knight errand that will be fishing for cause of action and reliefs to grant when such have not been sought.

A Court shall only grant reliefs claimed and proved, not being a charitable institution. What is more, an academic exercise shall not be the role of a Court as that is not the forum for a judicial exercise which shall be the ventilation of specific grievances or claims for specific reliefs sought.

I discountenance the submissions precursing and preceeding or heralding the submissions on the Respondents Brief of Argument, as contained on pages 15 paragraphs 1.0 3.9 thereof.

Assuming that I am in error of judgment (that there is no preliminary objection raised which I do not concede).

I do think that the Appellant has aptly answered it. A perusal of the Grounds of Appeal particularly the Grounds 1 and 2 complained of has clearly shown that they are two distinct and different Grounds of Appeal. Whilst the Ground one complains of the existence of a period of suspension as the reason for his entitlement to the success of the case brought by him as entitlements to salaries and benefit due within that period which were not eroded by his termination of appointment/or dismissal, she still in the employment of the Respondent; while the Ground 2 of the Notice of Appeal related to the fact of front loading of the condition of service/employment and that non suit would have been the appropriate order to make, in that circumstance.

It is clear to me and I agree with the Appellants learned counsel that the Grounds 1 and 2 are distinct and separate and cannot be taken as same and one for the purpose of defeating the raising of 2 issues therefrom the 2 Grounds of Appeal.

Indeed, even the omnibus Ground, alone was such that its existence made the appeal valid and issue may therefrom be raised and the appeal remaining valid and on it alone.

The case of Musa Sha v. Kwan (2000) 2 SCNR 802 at 817 818 relied upon by the Appellants counsel in his Reply Brief is relevant and saves the appeal herein.

Indeed, all the issues raised are distilled from and argued on the Notice of Appeal from whence, they arose and are competent and not invalid.

There was no blunder in the Notice and Grounds of Appeal visa vis, the issued distilled.

The learned counsel for the Appellant had also argued and rightly too that blunders, if any in the litigating process as in the inappropriate usage of Appellations such as Plaintiff and Defendant in this Court and all Appellate Courts in describing or originating actions/process is an irregularity. This Court had warned severally and recently that the appropriate Appellations be used for parties before this Court.

Hard to hear, as I have often said; I nonetheless agree with the Appellants learned counsel that such blunders by counsel should not defeat the fair hearing or justice of a case, as substantial justice as against technical justice or technicality should govern the Courts. Gone is the era of technicality. That ancient wagon had left the train station; as my Lord Mbaba, JCA, put it in his monograph/book Righteousness as the foundation of judicial system November, 2013. See also F. A. T. B v. Ezegbu (1994) 9 NWLR (pt. 367) 149 at 185 GH and F. R. N. v. Dairo & Ors (2015) 1 SCNN page 125, 144 145 aptly referred to supra by learned counsel for the Appellant to the effect that blunders of counsel should be jettisoned for substantial justice on the merit of a case and amendments may be made even suo motu to wrong appellations.

I agree and hold that even if the stand of the Respondent is an appropriate preliminary objection, it has nonetheless, failed.

I, accordingly, dismiss same.

On the merit of the appeal, I shall now proceed.

Issue one whether the Appellant was entitled to salaries and allowances during the period of indefinite suspension without pay from 22nd March 2013 till 27th February, 2015 when the Respondent served the Appellant with a disengagement letter from its service.

It was argued that the disengagement during the period of indefinite suspension did not disentitle the Appellant from her accrued salaries and benefits which still accrued during the period of indefinite suspension. That this act of indefinite suspension had been held to amount of constructive termination and had been held as null and void; as though suspension is recognized within the scope of an employees appointment, refusal to recall may amount to termination as suspension with or without pay should be for a reasonable time. Counsel relied on Yusuf v. Von (1996) 7 NWLR (pt. 463) 746. Counsel submitted that the suspended employee/ Applicant should be given the benefits of employment accruing to him during the period of suspension after he had been exonerated by the investigations.

That the learned trial judge had misdirected herself when she held that by not front loading the conditions of service as such, her claim is dismissed.

Counsel said the trial judge had recognized and stated the fact that the suspended staff was still an employee of the Respondent and was entitled to all her salaries and allowances throughout the period of suspension. Olafimihan v. Nova Tech Ltd (1998) 4 NWLR (pt. 547) was referred to in contending that a suspension beyond the period provided in the contract of employment was null and void and the employee entitled to all his salaries and allowances for period beyond the agreed period of suspension.

That the judge having held that Exhibit D D2 did not provide for indefinite suspension, expressly, then it would have held those documents to be the conditions of employment.

That Exhibit C on page 16 and Exhibits D1 and D2 on pages 17 and 18 of the record were the terms of employment.

That the police had exonerated the claimant, herein and one Emmanuel Aderibaki. Bamisile v. National Judicial Council (2013) ALL FWLR (pt. 678) 911 at 942 pars FG relied upon. Duru v. Skye Bank Plc. (2015) 59 NLLR (pt. 1205) 608 at page. 731 732 par. E-B, Longe v. First Bank of Nigeria Plc. (2010) 2 3 SC (pt. 3) 61 relied to argue that all the benefits should be paid as no crime was established before or after suspension, including disengagement.

That if the Appellant had been found guilty she would not have been told that the management group shall accordingly advise on her terminal account. Page 64 of the record of appeal par. 4 relied on in showing the content of the letter of disengagement. Referred to NEPA v. Adeyemi (2007) 2 NWLR (pt. 10210 p. 315 at 331 332 that no reasons need be given for termination, but once given and disputed, the onus lay on the employer to justify the reason by evidential proof.

That it was not established that the Appellant was at fault in not de activating the platform and submitted that there was no fault on the part of the Appellant, and she had, by the police Report Exhibit H paragraph 11 on page 27 of the Record, been exonerated.

It was also contended that the letter of indefinite suspension by the Respondent without pay from 22nd March, 2013 to 17th February, 2017 when letter of disengagement was served on her though back dated to 16th January, 2015, almost 2 years amounted to a constructive dismissal. Illo Dibia v. ICC Ltd (1997) 7 NWLR (pt. 512) 174 at 187. That per Exhibit J letter of indefinite suspension the Appellant was to be reporting to the regional coordinator ICU, South West 2, Zone once every week until the determination of the case and that this was complied with; and the respondent had not pleaded or said the appellant breached the terms given to her; that Appellant therefore remained an employee until when her appointment was terminated on 16th January, 2015.

That Appellant was for the aforesaid entitled to all her salaries and allowances as spelt out in Exhibit E page 19 of the record of appeal as

stated in paragraphs 39 and 40 of the amended statement of claim and also tendered as Exhibit E; that the employment particulars in Exhibit D1-D2 was in the contract of Employment and having provided for one/month notice or one month salary in lieu of Notice and which was not satisfied in this case, the termination was wrongful. Refers to the decision of this Court in Petroleum Training Institute v. Mathew (2012) ALL FWLR (pt. 623) 1949 at 1967 C E to show that a contract of employment is the only basis to found any action for breach of contract of employment or any claim therein and it is not for the employee to seek to prove any breach of contract of employment.

That on discipline, though paragraph 10 of Exhibit D2 reserves the right of discipline of the employee by the Bank/Employer in accordance with the code of conduct and Rules and Regulations to be formulated and notified the employee and to dismiss for gross misconduct without notice, the said ethical standards, Rules and regulations must first be brought to the notice of the employee.

The learned counsel urged us to hold that the terms of the employment contract was the Exhibits C, D1 D2 and that the Courts disregarded them wrongly; that it should be held in favour of the Appellant that she was still in the service of the Respondent during the indefinite suspension and was entitled to his salaries and allowances for the period.

On the issue 2 whether the Exhibit D1 D2 were not the contract of employment between the Appellant and the Respondent and whether the Respondent was not entitled to rely on to comply; that Exhibit C was the letter of engagement and Exhibits D1 and D2 and E were the terms and conditions thereof.

That parties having admitted the contractual relation as governed by the a foresaid exhibits, the Court ought to have so found as there are no other conditions of service in evidence.

That where Adequate Notice or payment in lieu of Notice are lawful ways terminating a contract of service with or without reasons, the Court will act on it. SeeUniversity of Maiduguri Teaching Hospital Management Board & Anor v. DAWA (2002) FWLR (pt. 108) 1402 at 1419 CA 20 but in this case, where notice is required, Notice or payment in lieu is a condition precedent, and must be fulfilled. Friday Abalogu v. Shell Petroleum Development Company of Nigeria Limited (2003) 6 SC (pt. II) 19; at 37 and the termination in the manner unwarranted by the contract was answerable in damages. Samson Babatunde Olanrewaju v. Afribank Plc (2001) 7SC (pt. II) 1 at 20 Olatunbosun v. Niser Council (1988) 3 NWLR (pt. 80) 25, UNTHB v. NNOLI (1994) 8 NWLR (pt. 363) 376 that on the above authorities, we should declare the termination as wrongful and unlawful.

That inviting the Appellant to the Respondents Headquarters on phone did not prove anything as there was no disciplinary committee that asked her anything, nor was there anything in writing be it query or otherwise. Relying further on Odeh v. Asaba ile Mill Plc (2004) ALL FWLR (pt. 224) 2163 a 2177 8 CA, it was contended that Appellant was entitled to all his salaries and allowances and all retirement, benefits inclusive of all contributory pension fund in accordance with the Pensions Act 2004, having deducted same from her salaries.

ISSUE 3

It was argued on this issue that since the Appellant had not totally failed in proving his case, the judge having held that the Appellant only did not front load the conditions of the contract of service; and therefore, since Exhibits D1 and D2 had been pleaded, tendered and admitted in evidence as Exhibits D1 and D2 and the Respondent was in possession of the condition of service the Court could in that circumstance non suit rather than dismiss the case as the Appellant had not completely failed to prove her case. That she had proved the terms and conditions of service by Exhibits C, D1, D2 and E admitted in Evidence and termination has been shown to be outside those terms and Appellant was still in the service when suspended.A. C. B. v. Yesufu (1980) 1 2 SC 49 relied on. Kaura v. UBA Plc (2005) 8 NWLR (pt. 926) 24; BOSIEC v. Kachala (2006) ALL FWLR (pt. 309) 1420; Odi v. Iyala (2004) 4 SC (pt. 1) 20 @ 37 38.

The learned counsel contended that since Exhibit C was the letter of employment which alluded to the supremacy of its terms therein contained in the event of any conflict between any other conditions of service issued by the bank and the letter of offer, and since no other conditions and terms were issued, the trial judge ought to have alluded to that fact and at worst non-suited the parties; upon calling them to address on non-suit. That Order 46 of the National Industrial Court Rules of 2011 and 2016 provide so. Omoregbe v. Lawani (1980) 3 4 SC 108 is also relied upon and urged that the Appellant having not lost in toto and the respondent having nothing to lose we should do justice by non suiting the Appellant in the alternative to enable him obtain justice.

Ultimately, it was argued that Exhibits C, D1 D2 and E tendered by the Appellant constitute the contract of employment between the parties in this suit which the trial Court ought to have construed as such in the absence of denial or objection to their admission as Exhibits for the purpose.

That the Respondent glaringly breached the terms and conditions contained in Exhibits C, D1 D2 which is the contract of service and thus the termination of the Appellants appointment by the Respondent is unlawful, null and void.

That the indefinite suspension of the Appellant by the Respondent does not deprive the Appellant from being paid her terminal entitlements at the time her appointment was actually determined.

That the trial Court did not advert its mind to the existence of Exhibits C, D1 D2 and E before coming to the wrongful conclusion that the Appellant did not tender or frontload the conditions of service where as the said conditions of service are actually pleaded and were before the trial Court.

That issue 3 may be resolved as alternative relief in favour of the Appellant.

That this appeal is meritorious and should be allowed with consequential orders.

The Respondent articulated 2 issues; those issues I and 2 are similar to the Appellants issues in essence though framed differently.

The learned counsel on issue 1 preluded his submission by an imputation of gross negligence and imputation of one wanting to benefit from a financial loss caused the Defendant in large amount of money and who is bent on seeking to be imposed on an unwilling employer.

It was argued that parties are bound by contract as agreed; that same shall be held as binding by the Courts. Maryam Isiyaku v. Dr J. S. Zwingina (2001) FWLR (Pt. 72) 2096; Fakorede v. AG. Western State (1972) 1 ALL NLR (pt. 1) 178; Thomas v. Olufosoye (1986) 2 NWLR (pt. 18) 669.

The learned counsel argued that the evidence of the Appellant on entitlement to salaries and other entitlements during her suspension as averred in her statement on oath, paragraphs 4, 5, 7, 13, 14, 17, 18, 20 and 21 is not founded upon any pleadings in support of claim for salary during the suspension.

That the Court will not act on same as the evidence goes to no issue. That the Court was right in dismissing the case of the AppellantLana v. Unibadan (1987) 4 NWLR (pt. 64) 245 @ 258 262 relied on.

That all through, the Appellant failed woefully to discharge the burden of proof on her, being the person who alleged. That Sections 131, 132, 133, 134 135 and 136 of the Evidence Act 2011 were not complied with. Alhaji Otaru & Sons Ltd v. Idris (1999) 6 NWLR (pt. 606) 320 referred.

The learned counsel also referred to page 263 272 of the record of appeal on the evidence and exhibits tendered.

On Exhibits C D1 D2 counsel concedes that they show glaringly, the relationship between the parties as one of master/servant and therefore those exhibits are relevant to the argument and that paragraph 2 of Exhibit C had given the power to the Respondent to come out with the terms and conditions of service that may be issued from time to time by her. That Exhibits D1 and D2 contain some conditions of service and the power of the parties to the contract. That paragraphs 10 of Exhibit D1 D2 gave the Respondent power to discipline the erring staff/servant that is involved in misconduct.

That, that part of the contract of employment was signed. That Exhibit Y and its content were part of the disciplinary measure/power given in paragraph 10 of Exhibit D1 D2 and also in line with paragraph 2 of Exhibit C. that allows terms and conditions that may be issued from time to time by the Bank, that Appellant failed to disable her NIP platform and thus still had access to her mail and thus could print all the exhibits attached and tendered at the trial without necessarily giving the Respondent Notice to produce same.

That the Appellant was negligent and her password was therefore allowed to be used to perpetuate the fraud. That if she had been honest and allowed her NIP platform to be disabled by the IT of the Respondent, perhaps the fraud would not have happened.

That the Appellants conduct was at best an act of dishonesty, gross misconduct and above all a betrayal of trust under the contract of employment.

That she had been given fair hearing from the inception of the investigation of the fraud till the time of appearance before the disciplinary committee. That she had on oath stated that she was recalled to explain the fraud before she was placed on suspension without pay.

That after the suspension without pay, she was again invited by letter to face the disciplinary committee.

That the Respondent never breached any of the fundamental terms of the contract. That the claim of breach and entitlement to salaries and allowances during the suspension be dismissed and the issue resolved against the Appellant.

On issue 2 whether the trial Court was justified in dismissing the Appellants case or whether the Appellant had proved her case on the basis of Exhibits D1 D2 to be entitled to judgment and the reliefs sought at the trial, the Respondent observed that Appellant did not file Additional witnesses statement on oath to reflect her amended statement of claim. Referred to pages 93 101 of the record. With reference to items 4,8 and 10 in Exhibits D1-D2, it was contended that a master/servant contract was in existence and either party may terminate by giving one month Notice of payment in lieu. Nigeria Airways v. Gbajumo (1992) 5 NWLR (pt. 244) 753 and the fact of payment of salary and allowance was such that was unproved.

It was argued further that the amendment had constituted pleaded facts without evidence in support and those pleaded facts were deemed abandoned and the evidence led went to no issue. Rotimi v. Magregor (1974) 11SC 133 @ 152; Agbabiaka v. Shaibu (1998) 10 NWLR (pt. 571) 537 @ 548 NDIC v. Oramu (2001) FWLR (pt. 82) 1974; Okafor v. Okitiakpe (1973) 2 SC 49 relied on.

That the Court rightly dismissed the case as unproved. Njoku v. Eme (1973) 5SC 294.

The learned counsel for the respondent submitted that it is the carelessness of the Appellant that led to the loss of the colossal sum of Twenty Two Million Naira (N22, 000, 000); that this was what the Respondent considered as gross misconduct, hence the termination of the employment of the Appellant. S. B. Olarewaju v. Afribank Plc (2001) FWLR (pt. 72) 2008.

That since the onus of proof of wrongful termination of employment was on the Appellant who had failed at the trial to discharge, the trial Court was justified in dismissing the the case of the Appellant.

The learned counsel for Respondent in another dimension contended that a master need not state any reason for terminating the employment of a servant more importantly as he has power to hire and fire. Fakuade v. O. A. U. T. H. Complex Management Board (1993) 5 NWLR (pt.291) 47.

That so long as the terms of their employment are complied with, the employer (master) can terminate the contract of employment at any time and for any reason or no reason at all.

That motive is of no moment and not the business of the Court which will only give effect to the contract of service between the parties. Taiwo v. Kingway Stores Ltd (1950) NLR 122.

That the case of the Appellant is incurably bad and no non-suit could not be entered, as there was no basis for sympathy other than to give effect to the contract of service between the parties. Taiwo v. Kingways Stores Ltd, (supra).

That there was no counter claim by the respondent; the claim was manifestly unsubstantiated and unproven evidence led was at variance with the claim and the evidence of the Respondent was unchallenged and that the claim was rightly dismissed and that this appeal should fail.

I have taken time to study the record of appeal and the briefs exchanged and adopted at the hearing and find that the appeal can be determined on the issues as formulated by the Appellant. The issues 1 and 2 thereat answer the two issues formulated by the Respondent completely.

ISSUE ONE

I have perused the record of appeal and the exhibits tendered in their entirety; and having studied the respective Brief of Argument filed and argued, and thus have no hesitation in coming to the conclusion that the Appellant was entitled to her salaries and allowances during the period of indefinite suspension without pay from 22nd Mach, 2013 till February 2015 when the Respondent served the Appellant with disengagement letter from its service.

There is no doubt that a master is at liberty to terminate the employment of a servant, since he has the power to hire and fire.

The learned counsel for the Respondent had validly submitted on this power and relying on the case of Fakuade v. O. A. U. T. H. Complex Management Board (1993) 5 NWLR (pt. 291) 47.

The Appellant does not dispute this power of the Respondent over her as an employee as exemplified in the contract of Employment Exhibit A, Exhibits B, C, D1 D2, E,; however, the clear facts apparent in this appeal is that the Appellant had applied for and was granted leave of absence for 10 days.

He had proved this by Exhibit F. which is an internal memo of 27 3 2013 intimating the Appellant of the approval to proceed on 10 working days leave as applied for effective 25th February, 2013 and to resume on Monday 11th March 2013. On the 28 3 2013 user creation and modification form for enterprise fast pay and PIN vending change of identification platform and the particulars of change was filled and endorsed by the Appellant and the supervisor Foluso Olufemi Adeyemi and the Auditor one Alabi Tope.The Exhibit G is that document.

Curiously, by Exhibit I, of 4 2013. Comfort Lowayomi who took over indicated that the fast pay and PIN vending was not yet done. This was a reminder to the earlier one sent to one Nnenna Akubue. (the user Administrator on 13 2013 the date of Appellant said she actually commenced her approved leave.

The Exhibit H, the police report of 26th August 2014, clearly indicts 2 staff of the Respondent Bank whom, the police named; and so also 2 other named non-staff. The police have also clearly stated the uncooperative posture of the Respondent in making available the said Nnenna Akabua (the Administrator of the Bank platform for discreet investigation.

This would have shown why the change in the NIP was not effectively implemented so as to completely disable the identity and usage of the pin numbers of the operating staff who had been allowed to and had proceeded on leave

The observations of the police and their report was an indictment of the Respondent and exculpation of the Appellant in the circumstance while an employee in accordance with their contract and with a view to investigating or taking a disciplinary action,the staff was still its employee whether suspended on pay or without pay. See Bamisile v. National Judicial Council (2013) ALL FWLR (pt. 678) 911 @ 942 par FG (CA) where this Court held that suspension does not entail demolition of the rights of the employee under the law.

That it only entails the suspension from the performance of his duties, by virtue of his office.

That being the case, the suspension of the Appellant having been clearly seen to be without basis, as she has been cleared, having no fault or complicity. His status as a staff within the period of suspension preserved his entitlements.

The police report Exhibit H, clearly shows at the penultimate paragraph that at the time the fraud was perpetuated and enabled by the Respondents negligent or deliberate policy of disenabling only the staff personal identification password while the NIP is still allowed to function when staff are going on leave.

The probabilities and suspicion has been settled by the Report and the fact of submission of change and non-chalance or acquiescence or laches on the part of the Bank Administrator.

The facts are clear. Duru v. Skye Bank Plc (2015) 5 NWLR (pt. 205) 608 @ 731 -321 and Longe v. First Bank of Nigeria Plc (2010) 2- 3 SC (pt. iii) 61 are apposite on the stand of the Appellant, herein.

It is true that an employer is not obliged to give any reason for dismissal of an employee, but once reasons are given and disputed in Court, the onus lies on the employer to justify the reasons by evidential proof. See NEPA v. Adeyemi (2007) 2 NWLR (pt. 1021) P. 315 at PP. 331 332.

In the same token, I reason that if reason is given but based on suspicion and it is proved as unfounded as herein, then the Appellant is entitled to all his benefits as in the circumstance they are deemed to have been held in abeyance and in trust for him.

I agree entirely with the Appellants counsel when he submitted that the Respondent did not prove in evidence that she did not provide her active directory credentials to enable the disenabling of her pin as after all, the Administrator Nnenna Akubue had replied at about 12.04 pm of Monday 4th March 2013 from the Headquarters that DONE and the relieving officer could work. There was no proof of the allegation of withholding of NIP by the Appellant for the purpose of accessing her mail or perpetuating the fraud, the subject of the suspension and when investigations have clearly not pointed at her but persons stated and the Banks negligence. I cannot help agreeing with the Appellants counsel on the argument that there was no proof that there was any other identification password that could be used in disabling or accessing NIP platform.

The example of a solo ATM password for computers is judicially noticed, by me. I also agree that the play on semantics of NIP password and Active Directory Credential for disablement is of no moment.

It baffles me to read in address by Respondents counsel that the Appellant kept her personal identification password to be assessing her mails during her leave or vacation inspite of the denial and its lack of proof by the Respondent.

The statement on oath of the only witness for the Respondent has been rubbished by its conflicting character of the admission of the submission of the claimants password for disablement and which was said to have been done, and yet a complaint on the refusal to submit an NIP password for access to mail, which access, she denied having; the police showed that it was the Banks policy. Even if she had access to her mail, the question is, are the mails, the same as the Accounts defrauded?

They are not. The Appellant should not be crucified for fraud apparently enabled at the Head Quarters of the Respondent.

The Appellant had argued that since, she was per Exhibit J on page 24 of the Record of Appeal instructed to be reporting to the Regional Co-ordinator ICU, South West 2 once every week until the determination of the case and she complied without any proof of complaint of breach of this term, she was still and remained a staff till the termination of her employment on 16th January, 2015 and therefore entitled to her salaries and allowances as spelt out in Exhibit E page 19 of the record of appeal and pleaded in paragraphs 39 and 40 of the amended statement of claim; with due respect; it is not correct as stated by his lordship of the trial National Industrial Court, in its judgment, that though the suspended employee is still a staff of the Respondent his contract of employment was temporarily suspended together with all her rights and privileges as employee pending the conclusion of the disciplinary hearings.

The contract of employment is not suspended. It is the incidences of the contract that are suspended and to be revived in accordance to the contract and law to the status quo ante and may even be waived in favour of an employee at the discretion of an employer, even where the employee is found culpable.

The employer cannot, however, do the reverse where no fault is found. The suspension without pay cannot be held not to have a fulcrum upon which to determine its validity as held by the trial Court. The Exhibits C, D1 D2 and E were clearly the conditions of service and the contract of employment as a compendium. The attempt at saying that there was no conditions of service cannot be correct.

I dare say, even if or granted that there were not conditions of service against which to examine the validity of the letter of suspension, then, the obvious and inevitable and only reasonable conclusion would have been to declare the indefinite suspension null and void. Why that was not done, but rather a conclusion that Appellant had not proved that his suspension was wrongful beats me hollow!

The Appellant had not failed to make out his case on the entitlement during the indefinite suspension, having faulted both the suspension and denial of the entitlements.

Issue one is resolved in favour of the Appellant.

On the issue 2, whether the Exhibits D1 D2 are not to be relied on being the contract of employment between the parties and whether the defendant is not obliged to adhere to same; I had answered it already when considering issue number one (supra).

The said Exhibits C, D1 D2 are clearly the contract of employment between the parties herein. Termination of the agreement in respect of the employment had been clearly stated therein in the contract by the term of one (1) month notice or payment in lieu of notice.

In this regard, the Respondent was in clear breach of this mutually agreed stipulation which is a term of the contract relating termination, thereof. Just as the Appellant as an employee may not terminate without the one months notice or/months salary, so also the

Respondent Bank/Employer cannot do.

The Appellants learned counsel had, as expected of an advocate, in candour and fidelity to the law referred to the stipulation on discipline in the said Exhibit wherein the Respondent reserves the right to formulate and notify you of any disciplinary rules applicable to your employment. The Bank reserves the right to dismiss you without notice for gross misconduct. You are also expected to observe and comply with the Banks code of conduct, rules and regulations and ethical standards out lined by the Bank.

The above terms or conditions do not take out the appellant from one that is entitled to his entitlements as agreed upon during any period before the cessation of their contractual relationship.

In any case, the Appellant was not dismissed; which dismissal if it were, must be in compliance with their agreement to be valid; that is to say, a dismissal must be for an act of gross misconduct.

These could be determined by the Bank and what a reasonable man would think to amount to gross misconduct in the prevailing circumstances. If it is a violation of the Banks code of conduct, rules and regulations and ethical standards as outlined by the Bank, it will be so stated to the employee and in reference to the subject as already itemized in the handbooks referred to him.

This is not the situation in the instant case.

It is a termination as per exhibit entitled DISENGAGEMENT of 161 2015 shows. By whatever nomenclature, disengagement of appointment/employment is a termination. Under the common law relationship of master and servant, such contracts, may be terminated with or without notice.

It may be radical on grounds or no grounds. However, where a specific contract and term has been provided it must be respected and adhered to.

In this case on Appeal, Exhibit D1-D2 provides for termination by one months notice or one (1) month salary in lieu by either party.

Therefore, that letter of disengagement simply without compliance with the Exhibit D1 D2 is not in consonance with the terms of the contract of Employment. Parties are bound by the terms of their agreement and the Courts are also bound to respect and enforce same; Friday v. Balogun (supra) see also

University of Maiduguri Teaching Hospital M. B. & Ors v. Dawa (supra).

This, the Courts must do, so long as they are not illegal or against public policy. The only terms and conditions of Appellants engagement with the Respondent as set out in Exhibits C, D1 D2 and E and tendered show clearly that in the event of any conflict between any other conditions of service issued by the Bank and the Exhibit C the offer of Employment and D1 D2 E, the terms contained in the later shall prevail.

That the parties having admitted those exhibits as their contract of service/employment and terms thereof, the trial Court had no option than to so hold. No other terms and conditions of service was proved and I hold that those exhibits were the conditions and terms of the contract of employment between the parties herein and the Respondent was bound to observe them.

That a written agreement or part is sacrosanct and binding between the parties and must be respected and enforced by the Courts without any regards to other considerations is the law in all situations. Even in customary law relating to chieftaincy a registered chieftaincy declaration is the Nudum pactum between the parties. See Oyefolu v. Duro Sinmi(2001) 89 LRCN 2401 where Igu, JSC in interpreting and enforcing the customary chieftaincy and agreeing with this Court, in departure from the position of the High Court held thus;

it is thus plain that a registered chieftaincy declaration such as Exhibit E is declaratory of the tradition customary law and usages relating to the section and appointment of a particular chieftaincy stool and obviates the necessity of proof by oral evidence of such tradition, custom and usages on each occasion that the issue arise for determination by the Courts.——-

The declaration like any other existing law, is binding on all candidates who seek nomination to fill a vacancy in the chieftaincy the designated area. The learned trial judge had no further duty to perform than to interprete and give effect to the provisions of the chieftaincy declaration, Exhibit E having regard to its clear and un ambiguous meaning.

In the instant appeal there was no issue joined as to the contract of employment and its terms. Its violation by the Respondent must be sanctioned in the face of the contract, therefore. It was binding and the Court was bound to enforce it. The Respondent had sought to argue that the Appellant was grossly negligent and had caused loss of money leading to the disciplinary action of suspension and termination. There was no such counter claim; nor pleadings in that regard.

To the contrary, the Appellant had pleaded negligence on the part of the Respondent Bank and proved same by the evidence of the police investigation and the fact of the necessary change of identity and password for the use of the relevant Bank platform and the acknowledgement by the administrator of the platform one Nnenna at the Headquarters.

I have no doubt that a careful reading of the pleadings in the amended statement of claim of the appellant disclosed principally, a relief with regard to the contractual obligations entered into by the Appellant. It did not plead a relief based on negligence but asserts negligence; the Defendant/Respondent, if mindful and where there was a genuine basis could have made a claim for loss of money in negligence and claimed damages in addition; which is harped so much upon, without any iota of evidence. Because the Respondent knew that there is no such thing as negligence in the air, so also there is no such thing as liability in the air. (Per Ejewunmi, JSC) see Bourhill v. Young (1943) AC 92, 101; (1942) 2 ALL ER 396; King v. Philips (1953) 1 QB 429, 441; (1953) 1 ALL ER 617; Overseas Tankship (U.K) Ltd v. Morts Dock & Engineering Co. Ltd (1961) AC 388; Home Office v. Dorset Yacht Co. Ltd (1970) AC 1004. All referred to with approval by the Supreme Court in Makwe v. Nwukor (2001) 89 LRCN 2381 at 2399 2400. The respondent only speculated and gambled with the right of the Appellant.

The Respondent was only holding on to a straw in desperation to find justification for the palpable breach of the contract of employment, in my contrite view.

On the authority of Agbareh v. Mimra (2008) vol. 158 LRNC 325 the Court is bound by the contract between the parties and the record of appeal. So also the parties are so bound and cannot resile from same.

It is immaterial even if the parties did not testify and tender all the documents as it is common ground that there was an agreement and the documents are in the record of proceedings and appeal. Parties or either party cannot read into their agreement terms that are not there.

The parties had not agreed to any terms that the Appellant shall take over the supervisory role of protecting the platform of the Respondent even when on leave and after having done all that was required of her towards the disabling of her password, in this case handover and notification to the appropriate officer of the Bank.

The further submission that the terms and the procedure of the termination was not followed, and therefore, that the termination be declared wrongful and on the authority of the case of Olatunbosun v. NISER Council (1988) 3 NWLR (pt. 80) 25 and UNTHB v. Nnoli (1994) 8 NWLR (pt. 363) 376 was well founded. There was no compliance with the contract of employment in the slightest, by the Respondent herein.

In Agbareh v. Mimra (supra) it was held at page 353 thus:

EE Of course, the consent judgment talks about the said two agreements between the Appellants and the 1st and 2nd Respondents. These two said agreements, have already been referred to by me in this judgment and they can be found at pages 110 to 119 of the records. They are part of the records before the Court below and this Court and also referred to in the said consent judgment at page 20 of the records of course, it is settled that if parties enter into an agreement, they are bound by its item (sic) (terms) and the one or the Court, cannot legally or properly, read into the Agreement the terms which the parties have not agreed and did not agree to. See the case of Evbuomwan & 3 Ors v. Elema & 2 Ors (1994) 7 8 SCNJ (pt. II) 243. Per Ogbuagu, JSC.

There is no doubt that the Appellants contract of Employment with the Respondent does not enjoy statutory flavour as it is determinable by either party in a way and not being of a tenured term.

It only had to comply with the terms of the contract. See Fakuade v. OAU (1993) 6 SCNJ 35; termination without reasons would have been justified as was done, but here the contract of employment stipulated a period of one Months notice which was circumvented futilely!

Issue 2 is resolved in favour of the Appellant.

ISSUE 3

This issue on whether the trial Court ought to have non suited the parties is a non issue in the face of the resolution of the 1st and 2nd issues. The Appellant had succeeded in toto in proving her case at the trial Court.

In any case, there was no basis for a non suit to be entered. It would have been unjust to so order where a claimant should have succeeded on the strength of his case as established already.

The Appellants learned counsel had taken exceptions to the litany of deni-grading epitaphs of untruth rained on him as counsel for Appellant by the Respondents counsel, who was said to have told the trial Court to use the complainants initial statement of witness on oath rather than a further or the later statement filed consequent the amendment of the claim.

There was truly no such thing that transpired at the trial, from the record of appeal before us. Whilst parties and the Courts are bound by the record of appeal just like the Court; see Agbareh v. Nimrah (supra), parties nay counsel must not re-invent the records of Court as that will be dishonourable and unprofessional, parties or their counsel must not sail at all costs, as conscience and integrity must govern adjudication as in litigation, too.

It should be said also that two wrongs do not make a right; in this wise, Appellants learned counsels statement that his colleague for the Respondent lied is indecorous. Counsel should be courteous, modest and polite one to another as they are to the Courts. The only exception is that the law and their clients cases and rights must not be compromised.

It is the decorum, aptness and masterly choice of language appropriately that makes the legal practitioner or counsel a brand aside his knowledge and skills in the law.

I commend these to solicitors and advocates. Even the judges are not immuned from this error that needs to be reversed, as offensive epithets should not be regurgitated in-ordinately and inappropriately sarcastism of course is a way of communication, but counsel should not dwell on the euphemism that No one is above mistakes so as not to perpetuate redeemable but too obvious and avoidable errors such as wrong Appellations of parties in the Appellate Courts.

Counsel must and should proof read their documents before they are filed to reduce too obvious errors; happily I note the grant of the motion on notice for the Amendment of the Appellants Notice of Appeal in a manner that affected the wrong Appellation of parties. That was on 25 10 2018 per motion of 22 2 2018.

Respondents learned counsel both at the trial and in this Court chose to push the case of the Respondent at all costs inspite its non?merit by a jot when he insisted that it was the profile of the Appellant that was used in perpetuating the fraud and to her knowledge or negligence; amorphously and speculative without proof, I dare say. The Respondents only witness testifying on the Active Directory stated that it is what is intended to activate and deactivate profile completely; and that it is done at the Headquarter. See pages 269270 of the record. This puts paid to all blame on the Appellant herein.

The Respondent had clearly testified against itself and strengthened the Appellants case. Cant the Respondent be consistent at both the trial and Appellate stage? See Ajide v. Kelani (1985) NWLR (Pt. 12) 248.

A sad commentary in persecution, prosecution and injustice. No wonder, a desperation in the nature of the baseless preliminary objections were erected.

Accordingly, this appeal is allowed and it is consequentially declared that both the indefinite suspension and termination of the Plaintiff/Appellant employment were wrongful and contrary to their contract of engagement as proved and found by me.

Accordingly; 1. it is decreed that the Appellant was/is entitled to damages for wrongful suspension and termination of employment.

2. In the circumstances of the above, (a) the Appellant is indemnified in general damages for wrongful suspension and termination and in the sum of N5,000,000. 00 (Five Million Naira only).

(b) The Respondent shall pay to the Appellant herein all her entitlements in salaries and allowances, inclusive of all perquisites of office due to her status as at the date of her compulsory suspension being when monthly salary was due on 223 2013 shown in Exhibit B till the 16th day of January, 2015.

(c) the computation of the benefits, entitlements and allowances due thereof shall be as per the terms and conditions of service Exhibit E .

This I do pursuant to Order 16 of the Court of Appeal Act 2016, in respect of reliefs and orders that the trial Court ought to have made.

Appeal is allowed.

Cost: I award a paltry cost of One Hundred Thousand Naira only in favour of the Appellant and against the Respondent.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just rendered by my learned Brother, Mohammed A. Danjuma, JCA.

I am at one with His Lordship’s line of reasoning and the conclusion reached by him that the appeal is meritorious. Therefore, I also allow the appeal and abide by all the consequential orders made in the said leading judgment, including that of costs.

PATRICIA AJUMA MAHMOUD, J.C.A.: I had the privilege of reading well in advance the lead judgment of my learned brother MOHAMMED A. DANJUMA, JCA just delivered. He has meticulously, exhaustively and adequately dealt with and resolved all the issues raised in this appeal in such a manner that I have nothing useful and nothing else to add even just to enrich it. It is appropriate to say that I agree with his reasoning and conclusion and adopt them as mine. I also allow this appeal and set aside the decision of the lower Court. I abide by all the consequential orders made by my learned brother in the lead judgment.

Appearances:

S. A. Ayesa, Esq.For Appellant(s)

Alhaji M. A. Fadunmoye, Esq.For Respondent(s)

Appearances

S. A. Ayesa, Esq.For Appellant

AND

Alhaji M. A. Fadunmoye, Esq.For Respondent