IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN IN ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATED: 11TH OF MARCH, 2020 SUIT NO.: NICN/ABJ/349/2018
SAMBO ABDULLAHI …………. CLAIMANT
1 NIGERIAN BULK ELECTRICTY TRADING PLC (NBET)
2 DR. MARILYN AMOBI
3 HONOURABLE MINISTER, FEDERAL …………..DEFENDANTS
MINISTRY OF POWER, WORKS AND HOUSING
4 FEDERAL MINISTRY OF POWER, WORKS AND HOUSING
A.O Olori-aje with him M.I Abdullahi, A.S Gobir, S.O Yahaya, Bello Lukman Ibrahim for the claimant.
O. Oshobi (SAN) with him O.I. Arasi, W.A Egbuna, U.F. Hussein for the 1st -2nddefendants.
No appearance for the 3rd and 4th defendants.
By a Complaint and Statement of facts both filed on the 7th December, 2018, the Claimant sought the following reliefs jointly and severally against the Defendants.
a. A DECLARATION that the suspension of salary and emoluments,
Denial/embargo on access to National Health Insurance Scheme benefits, denial of 2017and 2018 annual leave till the time of filing the suit by the 1st and 2nd Defendants is unlawful, illegal, null and void.
b. A Declaration that the 2nd Defendant lacks the vires to unilaterally suspend punish and/or withhold the salary, emoluments and all other benefits accruable to the Claimant without approval by the Board of 1st defendant.
c. AN ORDER directing the immediate payment of Claimant’s accumulated salary and emoluments and all other benefits accruable to the Claimant as staff of the 1st Defendant from 22nd December 2017 till date.
d. AN ORDER directing the 3rd Defendant to ensure strict compliance by 1st and 2nd Defendants with the directives in the 3rd Defendant’s letter dated 20th March 2018.
e. AN ORDER of general damages of
N250, 000,000.00 (Two Hundred and Fifty Million Naira) in favour of the psychological trauma and injuries suffered by the Claimant as a result of the 1st and 2nd Defendants actions.
The 1st and 2nd Defendants subsequently filed their Joint Statement of Defence on
3rd April 2019.In the course of trial, the Claimant testified as CW1, he adopted his written statement on oath dated 7/12/18 and 30/4/19 respectively as his evidence in this case, he equally tendered documents which were admitted and marked as Exhibits SA-SA35. He was cross examined by the defendants. The 1st and 2nd Defendants called a sole witness, one Mrs Itohan Ehiede, Head, Corporate Service Department of the 1st Defendant, sheadopted her written statement on oath dated 30/10/19 as her evidence in this case, Exhibits A – A17 were tendered through her and consequently admitted in evidence by the Court, she was equally cross examined by the claimant’s counsel.
The case of the Claimant, as contained in his witness statement on oath is that he was employed by the 1st Defendant vide a letter dated 12th June 2012 as the Head of Internal Audit of the 1st Defendant. He averred that sometime in August 2016, he raised audit queries over payment of return flight tickets for the 2nd Defendant as well as the engagement of legal advisory service by the 2nd Defendant. That the above audit queries led 2nd Defendant to seek the intervention of the Office of the Accountant General of the Federation (OAGF) on the reassessment of the self-accounting status granted to the 1st Defendant in 2012. He continued that the above action of the 2nd Defendant led to the posting of treasury officers from the OAGF to the 1st Defendant’s internal audit unit and which posting allegedly compromised the objectivity of the OAGF.This according to him led to his subsequent redeployment by the 2nd Defendant to the learning and Development Unit (the L and D Unit) of the 1st Defendant allegedly in violation of the Public Service Rules (the PSR) as well as the 1st Defendant’s Board Charter (the Board Charter) and Human Resources Policy Manuel (the HR Manual). The Claimant stated also that another employee of the 1st Defendant, one Mr Waziri Bintube was equally redeployed by the 2nd Defendant in similar circumstance as a result of which he co-authored a petition to the 3rd Defendant being, according to him, the supervising Ministry of the 1st Defendant.He further stated that the 1st Defendant vide a memo dated 27th December 2017 stopped the payment of his salaries and emoluments on the grounds that the he rendered himself redundant and refused to release audit stamps issued to him by the OAGF. He contendedthat his redeployment was without any job description but that he was directed to meet his Line Manager to advise him on his job functions. That he was carrying out his duties in his new Unit to the extent directed by his Line Manager pending the intervention of the 3rd Defendant.
He affirmed that he initially withheld the audit stamps issued to him despite repeated demands by the Accountant General of the Federation because the rule on returning same was not followed and there was no Board directive to him. He averred that he eventually released the audit stamps to the Permanent Secretary of the 4thDefendant when too much pressure was exerted on him. The Claimant further stated that he informed the 4th defendant of the stoppage of his salaries and emoluments after which the 3rd and 4th Defendants set up a ministerial committee which recommended the payment of his salaries and emoluments. It is his further testimony that he was arrested by the Department of State Security (DSS) on 17th July 2018 on the orders of the 2nd Defendant and was detained till the next day and upon his release on 18th July 2019[SIC], the 2nd Defendant issued him a query for his absence from the office for two days. He also alleged that he reported at the new office building of the 1st Defendant without working tools, desk and/or official space to carry out his duty as a staff and that he has been ex-communicated by the 1st Defendant since moving to its new office building.
The 1st and 2nd Defendants in their joint defence to this suit, averred that the 3rd and 4th Defendants are neither constituted nor conferred with any power to oversee the affairs of the 1st Defendant’s Board of Directors.The 1st and 2nd Defendants pleaded that the posting of professional accountants from the OAGF to the 1st Defendant was one of the conditions to be fulfilled for the granting of a full-fledged self-accounting status initiated sometime in 2012 long before the 2nd Defendant became the Managing Director/Chief Executive Officer (MD/CEO) of the 1st Defendant. They continued that in line with the above, the OAGF posted two officers to head the audit and finance department of the 1st Defendant which necessitated certain redeployments to accommodate the new members of the 1st Defendant’s management team. This led to the redeployment of the Claimant to the Learning and Development Unit of the 1st Defendant where the Claimant was expected to utilize the best of his skills to provide leadership to the unit.That after his redeployment to the L and D Unit, the Claimant failed to report at new unit but rather became an authority unto himself exemplified by his flagrant disregard of repeated directive and demands issued to the Claimant to return audit stamps and keys to the 1st Defendants security safe. That the Claimant’s redeployment was lawful and consistent with the 1st Defendant HR Manuel and that the HR Manuel clearly defined the L and D responsibility of the 1st Defendant. The 1st Defendants also averred that the Claimant’s Line Manager in various correspondences affirmed the refusal of the Claimant to relocate to his new unit.They averred that the stoppage of the Claimant’s salary was taken in the public interest and is also consistent with the Financial Regulations as it is patently unreasonable for the Claimant to continue receiving his full salary as an employee of the 1st Defendant while deliberately refusing to report at work and rendering himself redundant. They contended that there is no indication that the committee set up by the 4th Defendant was a lawful creation based on the operative guidelines regulating the relationship between parastatals/Government-owned companies and the Government. It was also their case that there is no indication that the said committee ever completed the task or otherwise disclosed its finding to the 1st and 2nd Defendants.Notwithstanding the above, 1st and 2nd Defendants maintained that the 3rd and 4th Defendants lack the vires to issue directives to the 1st Defendant in relation to its internal workings as it is neither constituted nor conferred with the powers of the board of the 1st Defendant.
They continued that upon the dissolution of the Board of the 1st Defendant, the 2nd Defendant was directed to refer matters requiring the attention of the 1st Defendant’s Board to the President and not the 3rd and 4th Defendants. The 1st and 2nd Defendants therefore contended that there is no evidence that the President delegated his authority to the 3rd and 4th Defendants in relation to any matter concerning the 1st Defendant.On the allegation of deprivation of work tools, the 1st and 2nd Defendants stated that the Claimant has a fully functional workstation within the 1st Defendant’s premises but that he developed the habit of regularly occupying the 1st Defendant’s conference room during the few periods of his presence in the office. They also maintained that the 1st Defendant’s IT personnel was detailed to assist him in resolving whatever difficulty he had in accessing his official e-mail, he indicated that emails should be directed to his private email.Lastly, the 1st and 2nd Defendants pleaded that the Claimant’s suit is statute-barred and liable to be dismissed for lack of jurisdiction and urged the Court to dismiss this case.
Both learned counsel filed their respective final written addresses on behalf of their clients. The issues framed by both of them are one and the same. Having given an indepth consideration of the issues in contention before the Court vis a vis the reliefs sought by the claimant, it is in my respectful view that the issues that will meet the justice of this case are, whether or not the 1st and 2nd defendants have the power to suspend claimant’s salaries, emoluments and if the answer to this is in the negative, then is the claimant entitled to his claims? I will make reference to pertinent portions of the submissions and arguments of learned counsel in respect of these two issues in the course of this judgment.
First, I need to deal with certain preliminary issues raised by learned counsel in their final addresses. Learned defence counsel brought to the attention of the Court the derogatory and unwarranted attacks on his person, professional ethics, competence and capacity conspicuously in the claimant’s final written address especially at paragraph 6.2.9 of the said addresswhere the learned claimant’scounsel inexplicably asserts that counsel for the 1st and 2nd Defendants have no moral values and also failed in upholding the legal profession. It is germane for me to state from the outsetthat words are the most powerfulform of communication and so our choice of words is important. Therefore, it must be carefully and constructively used in such a way that it would not pass a wrong signal or impugn on the integrity of another. Words according to the Holy writ are sharper than any two edged sword. If negatively deployed, it can hurt, harm and humiliate. The words of Ngwuta JCA(As he then was) becomes relevant in this instant where he said in the case of His Holiness Olumba Olumba Obu v. Apostle EkanemO. Ekanem &Ors  LPELR-8623CA;thus “Learned Counsel as gentlemen colleagues and brothers at Bar have no personal issue one against the other. Win or lose the case they remain learned friends and colleagues. This is a necessary relationship that transcends, and enhances the conduct of, the cases they handle. Civility in spoken and written language is a lubricant that prevents law suits from degenerating into combat, and by which the participants emerge from our adversary process without blisters and swollen faces.".(P. 16, paras. E-G.I find it also pertinent here to state that the learned claimant’s counsel was not careful and civil in the choice of his words in passing on his arguments in favour of his client. This should not happen between learned friends as lawyers are regarded. As aptly put by His Lordship Ngwuta JCA as he then was in Olumba Olumba’s case supra, win or lose the case, learned claimant’s counsel and the learned defendant’s counsel remain learned friends and colleagues. It is in this regard that I discountenanced the derogatory words deployed by the learned claimant’s counsel in his final written address questioning the integrity and professionalism of the learned defence counsel before the Court and urge the learned claimant’s counsel to reach out to his learned friend for the 1st and 2nd defendants in the spirit of comradeship.
An issue of concern to the learned claimant’s counsel,is that the 1st and 2nd defendants failed to comply with the provision of Order 45 Rule 2 of NICN Rules 2017. To the claimant, the rule requires a written address to be at most 35 pages, whereas the 1st and 2nd defendants filed a 40 page final address, hence the Court should declare same as incompetent and strike it out. It is the argument of the 1st and 2nd defendants that the provisions of Order 45 Rule 2 is directory and not mandatory. They then urged the Court treat same as an exception to the rule.This Court by Order 5 Rule (3) of NIC Rules 2017, may direct a departure from the rules where the interest of justice so requires. The 1st and 2nd defendants had expounded in their reply address the reason for which they overshot the required 35 pages of final written address. I find the reason cogent, credible, reasonable and same will not prejudice the claimant in any way. In other words the extra 5 pages of the defendants’ final address has not in any way occasioned injustice to the claimant. He had the opportunity of responding to all the issues framed and addressed by the defendants. At best the Court may discountenance the portion that is in excess. As rightly submitted by the learned defence counsel, this provision is not mandatory. The import of which is that it is discretionary. Where a Court has a discretionary power on an issue, the discretion is to be exercised judicially and judiciously. See Lagos State Government & Anor v. Beneficial Endowment Ltd  LPELR-45779CA. A judicial and judicious exercise of my discretion in this instant is to allow the final written address filed by the defendants and pronounce it as competent. It is in the light of this that I invoke the provision of Order 5 of the rules of this Court by departing from the strict provisions of Order 45 Rule 2 and find the final written address filed by the 1st and 2nd defendants as competent. I so find and hold.
Before going into the merit of this suit, it is noteworthy that the 3rd and 4th defendants in this suit from the inception of this matter till this day have failed and or neglected to enter appearance or defend themselves and exercise their right of cross-examining the claimant in compliance with the provision of Section 36 of the 1999 Constitution as amended. Onnoghen JSC (CJN as he then was) in the case of Chief Leo Degreat Mgbenwelu v. Augustine Olumba (suing by his attorney Chief W.C. Okorie) Suit No. SC.83/2007, Judgment delivered by the apex court in December, 2016, he held thus-
It is not the duty of court to compel a party duly served with originating processes to defend the action, where he has no such a desire. All that is required of the court is to create and maintain an enabling environment for parties to exercise or take advantage of their right to fair hearing in any proceeding before it
Given the above highlighted decision of the apex Court coupled with the facts on record which is absolutely in consonance with the trite position of the law as reiterated in the reasoning of the apex court, it is obvious that the 3rd and 4th defendants by their own volition in this case failed to present themselves of the opportunity of a hearing and therefore cannot complain of an infringement on their right to be heard. They were certainly given ample opportunity to defend their case but chose to stay away without any just cause. I so hold.
Now, the law is notorious that where evidence given by a party to any proceedings or by his witness is not challenged by the opposite party who has the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it. This is because in such circumstance the evidence before the court obviously goes one way as there is nothing in such a situation to put on the other side of the imaginary scale as against the evidence given by or on behalf of the claimant. See the cases of Mabamije v Otto  LPELR -26058 SC; Mrs Esther Ighreriniovo v S.C.C Nigeria Ltd &Ors  LPELR- 20336SC; Amayo v Erinmwingbovo  LPELR- 458 SC. The apex court by Chami v. UBA PLC  6 NWLR (PT. 1191)474SC; held that where a party offers no evidence as in this instance against the claimant’s case, the burden placed on the claimant is minimal as argued by the learned claimant’s counsel, since there is no evidence challenging the case of the claimant. The claimant is then at liberty to use the unchallenged evidence to establish his case.It cited with approval its decision inOsun State Government v. Danlami (Nig) Ltd  7 NWLR, (PT. 818) 72 @ 99. However, the claimant is not absolved from the burden placed on him by law in proving the merit of his case, but with minimal evidential proof which lies on him as stated supra. See the case of Unity Bank v Olatunji  15 NWLR (Pt. 1378) 503,p. 531.I so find and hold.
It is germane for the Court to determine the admissibility or otherwise of Exhibits SA, SA1, SA7, SA8, SA10, SA16, SA19, SA20 and SA25. It is the defendants’ contention that these documents are inadmissible in evidence and should be expunged from the record of the Court as they are contrary to the provisions of Section 102 of the Evidence Act, 2011. The claimant on this issue stated that the arguments of the defendants is misconceived as the documents in question have satisfied the criteria on admissibility of documents as the documents were pleaded, relevant and admissible. According to the learned claimant’s counsel, a notice to produce the original of those documents was given to the 1st and 2nd defendants on the 15th of March, 2019, but they failed to produce same hence he tendered the copies he had. Cited in support is the case of Ibironke v. MTN  LPELR-47483CA. learned defence counsel argued in his reply on point of law that by Section 102 of the Evidence Act, the claimant can only tender certified true copies of these documents. That by Section 97(2)(C) of the Evidence Act, 2011 is clear on secondary evidence permissible under our laws. That it is only the certified copy of the document that is admissible and not photocopy and urged the Court to expunge the documents from the record of Court.
A perusal of the documents discloses that Exhibit SA is a photocopy circular dated 8/12/2016 and written by the 4th defendant to the Managing Director/CEO of the 1st defendant; SA1, is a photocopy circular dated 6/03/2017 and written by the 4th defendant to the Managing Director/CEO of the 1st defendant, a photocopy of a letter dated 27th February, 2015 written by the Office of the Head of Service of the Federationtothe 4th defendant; a photocopy of a letter dated 26th May, 2016 from the Office of the Head of the Civil Service of the Federation to the Auditor General of the Federation; SA7 is a photocopy of a letter dated 5th June, 2017 from the office of the Accountant General of the Federation to the Managing Director of the 1st defendant; SA8 is a photocopy of a letter dated 30th May, 2017 from the office of the Accountant General of the Federation to the Managing Director of the 1st defendant; SA10 is a photocopy letter dated 13th June, 2017 from the claimant to the 3rd defendant; SA16 is a photocopy letter dated 5th January, 2018 from the claimant to the 3rd defendant; SA19 and SA20 arephotocopies of letters dated 18th of May, 2017 and 6th February, 2018 from the4th defendant to 1st defendant; SA25 is a photocopy letter dated 19th July, 2017 from the claimant to the 3rd defendant. By Section 102 of the Evidence Act, 2011, hereunder captured thus;
The following documents are public documents;
a. Documents forming the official acts or records of the official acts of;
i. The sovereign authority;
ii. Official bodies and tribunals; or
iii. Public officers, legislative, judicial and executive, whether of Nigeria or
b. Public records kept in Nigeria of private documents”
Of importance is also Section 89(a)(i) and (g) of the Evidence Act, which provides that a secondary evidence may be given of the existence, condition or content of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved, or the original is a public document within the meaning of Section 102. Also of importance is the provision of Section 91 of the Evidence Act, which provides that a secondary evidence of a content of a document referred to in Section 89(a) shall not be given unless the party proposing to give secondary evidence has previously given to the party in whose possession or power the document is or to his counsel such notice to produce it. The law is of common that for a document to acquire the status of a public document it must have been made by a public officer or kept by a public officer. Therefore a document is public based on custody or origin. A cursory examination of Exhibits SA, SA1, SA7, SA8, SA19, SA20 and SA25 show that they are official acts or records of the official acts of Public officers. It is on record that the claimant had infact given the 1st and 2nd defendants notice to produce two of the document tendered under contention. Id est exhibit SA10 dated 13th June 2017 and exhibit SA25 dated 19th July, 2018 respectively. The defendants did infact failed to produce these two documents. I will like to determine the admissibility or otherwise of these two documents first, before going on with the rest of the documents. By Section 89(a)(i) and 89 (g) as well as Section 91 of the Evidence Act 2011, the claimant having given a notice to the defendants to produce these documents and the failure of the defendants to produce same, has the right to tender a secondary evidence of the two documents in evidence. It is a trite position of law that where a notice to produce is served on a party who fails to produce same, then the law allows secondary evidence of such document to be adduced where available. In other words, the purpose of issuing notice to produce is to allow the person who gives the notice to tender secondary evidence of the required documents where the adverse party fails to produce them. See Buhari v Obasanjo supra, Ajagbe v Babalola LPELR (3668) CA;Ibironke v. MTN supra. I discountenance with respect the submission of the 1st and 2nd defendants that the two documents by Section 97(2)(c) must be certified by the claimant even after given notice to produce. Infact reference to Section 97 of the extant Evidence Act is to the effect that an admission of execution of a party to an attested document, which is contrary to the situation in the instant case is like turning the law over its head.It is in the light of these sound position of the law that I find and hold that exhibits SA10 and SA25 tendered by the claimant is admissible in law and stands admitted on record.
Next, are the other documents which the Court finds as against the argument of the learned claimant’s counsel that he gave notice to produce, which are not in the list of documents listed in the notice to produce. That is exhibits SA, SA1, SA7, SA8, SA16, SA19 and SA20. By Section 104 (1)(2)of the Evidence Act supra provided that;
1. Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is true copy of such document or part of it as the case may be;
2 The certificate mentioned in subsection (I) of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be certified copies.
Section 105 provides that Copies of documents certified in accordance with Section 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. ”
The above Section goes to show that a public document is admissible in its original form however, where a document is a photocopy or in duplicate it is equally admissible but must be duly certified by the officer in custody of such document. In this instant case, these exhibits as seen are duplicate of a public documents which by Section 104 of the Evidence Act supra must be certified, and by a run through of the documents, it is obvious that these documents are bereft of certification which Section 104 of the Evidence Act, supra requires. What is the effect of non-certification of a public document? It is trite that the non-certification of a duplicate of a public document is not admissible and thus must be expunged from the Court.In this case, all documents were admitted by the Court in view of clear agreement by the parties that all documentary evidence should be admitted subject to the right of all opposing parties to make submission in their final written addresses respecting objection to any of the documents.It is the duty of the judex at the stage of writing a judgment to expunge such a document from its record. The Court has the power to expunge the inadmissible evidence. See the cases ofBuhari v. INEC  4 NWLR (Pt. 1078) 546 at P. 608, paras. D-F;Nigeria Bank for Commerce and Industry v. Ogbemi & Anor,Suit No: CA/J/93/2006, a judgment delivered on 25th May, 2012.Hashidu & anor v Goje & Ors  LPELR 10310 CA; Metalimplex v A.G Leventis & Co Ltd  2 SC 91. In the case of Agbaje v Adigun  1 NWLR (Pt. 269) 261, the Apex Court held that when evidence has been wrongly admitted, the law is that the evidence must be expunged from the record at the point of writing the judgment. The Supreme Court went further to say that the basis for the rule is that the evidence does not go to any issue and that being so it cannot be legal evidence upon which the Court can make a finding of fact. See also the case of Inyang v Eshiet  5 NWLR (Pt. 149) 178. Applying this authorities to this instant, it is clear that Exhibits SA, SA1, SA7, SA8, SA19, SA20 as stated supra has no weight. In all, I hold that Exhibits SA, SA1, SA7, SA8, SA19, SA20 were wrongly admitted in evidence and thus expunged from the record of this Court for being inadmissible.
Regarding Exhibit SA16 it is a letter written by the claimant to the 3rd defendant. It is the defendants’ arguments that by Section 102 (b) of the Evidence Act that a public document includes public records kept in Nigeria of private document. They contended that this exhibit despite being a private document acquires the status of a public document by virtue of forming part of official record and thus require certification for it to be admissible. Now, will it be right to say that this document form part of official record to attract certification? Exhibit SA16 is a letter written by the claimant seeking the intervention of the 3rd defendant on the purported crisis in the 1st defendant, on the stoppage of his salary and his alleged unwarranted deploymentand humiliation by the 2nd defendant. In the case of Ezenwa Onwuzurike v Damian Edoziem and Ors  NGSC 76;  LPELR 26056 SC, the Apex Court on the question whether exhibit C a petition written to the Police by a private citizen had transformed to a public document had this to say;
Exhibit C letter dated 24th June 1997… was addressed to the Commissioner of Police, Owerri Imo State. The …….. paragraph of the said Exhibit contains a plea to the police to save their souls from Ezenwa(the plaintiff/respondent) and his groups. The addressee- the Commissioner of police is a public officer charged under the Constitution of the land, for the maintenance of law and order Exhibit C in my humble view has become part of his official records of the police, in writing exhibit C and forwarding it to no other person than the Commissioner of Police, the writers, again in my view, intended that it (Exhibit C) be given official treatment, this acquiring official coloration. The Nigerian Police is a public institution carrying official tag. So, documents though private in nature, when sent to the Nigerian Police requesting it to discharge its Constitutional duties, upon their receipt by the Nigeria Police became public record kept by them of private document from the foregoing Exhibit C comes within the category of documents defined in Section 109 (b) of the Evidence Act (now Section 102(b) Evidence Act 2011). To hold otherwise is to accord section 109 (b) strained interpretation.”See also Aromolaran v Agoro  18 NWLR (Pt 1438) 153.
By Section 318 of the 1999 Constitution as amended the Minister is classified under the Civil Service of the Federation as it is assigned with the business of the Government of the Federation. By Section 18 (1) of the Interpretation Act, Cap I92 LFN, 2010, a public officer means a member of the service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or the Public Service of a State. By a community reading of both Sections, the 3rd defendant is a public officer and a private correspondence sent to the 3rd defendant to seek his official intervention by virtue of his status at the material time formed part of a Public record kept in Nigeria of a private document. I say so in view of the fact that the said exhibit was not written to the 3rd defendant as a private person but in his official capacity and the act needed by the claimant is the official act of the 3rd defendant. Based on this, the said exhibits come under Section 102 of the Evidence Act supra and ought to have been duly certified under Sections 104 and 105 of the Evidence Act supra. The failure thereof as I have held supra renders the document inadmissible and ought to be expunged. It is in the light of this that I expunge from the record of Court exhibit SA16. I so hold.
It is pertinent to say here that it is obvious the 1st and 2nd defendants have abandoned the issue of jurisdiction raised in their pleadings, this is because they failed to adduce any evidence in that regard and thus the Court discountenanced same.
To the main crux of this case, it is the claimant’s contention that the suspension of his salaries and emoluments, denial/embargo on access to National Health Insurance Scheme benefits, denial of 2017 and 2018 annual leave by the 1st and 2nd defendants till the time of filing the suit is unlawful, illegal, null and void. Also that the 2nd Defendant lacks the vires to unilaterally suspend punish and/or withhold the salary, emoluments and all other benefits accruable to him without approval by the Board of 1st defendant. Deciding both claims together, claimant has averred that sequel to the audit query raised by him for the payment of the return flight ticket procured for the 2nd defendant before her assumption of office, the 2nd defendant resentful by his action redeployed him to another department in gross violation of Rules 020506(II) of the Public Service Rules and to which he and one Waziri Bintube wrote a Petition dated 13th June, 2017 to the 3rd defendant and on the 27th of December, 2017 he received vide his email, a memo titled stoppage of salary and emolument. The 1st and 2nd defendants in response stated that consequent upon the grant of a self-accounting status to the 1st defendant by the Accountant General of the Federation, vide a letter dated 13th December, 2012, the claimant was redeployed to head the Learning and Development unit within the 1st defendant while his organizational work rank of Deputy General Manager and his remuneration still remained intact. That based on this redeployment, the claimant started exhibiting some act of indiscipline in flagrant disregard of the terms of his employment as he failed to relocate to his new office and continue to parade himself as the Head of internal Audit of the 1st defendant. The 1st and 2nd defendants argued that the stoppage of the claimant’s salary was necessitated by his inexplicable gross insubordination in refusing to assume his new office; that he resorted to idleness and absenteeism whilst receiving his full salary, he seized two audit stamps assigned to the 1st defendant and the keys to the audit safe of the 1st defendant and his refusal and disobedience of lawful directives to return the audits stamps. To the defendants the right of an employer to discipline its employee by imposing sanctions cannot be disputable. Cited in support are the cases of Imonikhe v Unity Bank Plc 12 NWLR (PT.I1262) 6244 @ 649, parag. C as well as the case of UBN v. Salaudeen  LPELR-443415CA.I wish to say that it is clear that the relationship between the claimant and the 1st defendant is that of master and servant relationship and not statutory as the terms of the conditions of the claimant’s employment is regulated by Exhibits SA2, SA3 and SA9 (claimant’s offer of employment and confirmation letter and the 1st defendant Human resources policy manual), noteworthy is exhibit SA26 at the last page thereof where the claimant attested by hand dated 05 October, 2015 that exhibit SA9 details the terms of his employment with the 1st defendant and it is his duty to read, familiarize and abide by same. Although, both parties several times made copious reference to portions of the Public Service Rules. Moreover, parties are ad idem as demonstrated in their final written addresses that the above stated documents regulates the relationship between the claimant and the 1st defendant.
Indisputably, the conditions and terms of service is the central and substratum of the case and hence all issues regarding this suit must as of law be founded upon it as parties are bound by the terms and conditions of the contract of service as it is the bedrock upon which the employment relationship stands, See the cases ofObanye v. Union Bank of Nigeria Plc LPELR 44702 SC; Union Bank v Salaudeen supra; Obelema N. Briggs v Ibinabo Harry & 2 ors  9 NWLR (1516) P. 45; Cadbury Nigeria PLC v Olubunmi Oni  3 ACELR P. 118. It is settled that where the terms of the contract are clear and unambiguous; the parties are not allowed to renege on it or look elsewhere. Also true is the trite position of the law that the Court is not equally allowed to read into the contract. The apt reasoning of the apex Court in the caseGabriel Adekunle Ogundepo& Anor v. Thomas Enitan Olumesan  8 NWLR (PART 1278) 54 AT 70C-D per FABIYI, JSC who said: "I need to still point out at this stage that it is not the business of a Court to re-write parties contract for them. The duty of the Court is to interpret the contract as contained in the instrument made by the parties on their own free volition…”See also the case of Akinola & ors v. Lafarge Cement WAPCO Nig Plc  LPELR, 24630. I agree with the learned 1st and 2nd defence counsel that an employer is vested with the right to terminate, discipline and or punish its employee but the right I must add is limited to the extent that it must be done in accordance with the terms and conditions of service as argued also by the learned claimant’s counsel in his final address. If I may ask, can the 1st and 2nd defendants suspend the claimant’s salary and other emoluments by his contract of employment? By virtue of Exhibit SA11 a letter dated 27th of December, 2017 the claimant’s salary and emolument was stopped by the 1st and 2nd defendants, on the ground that the claimant refused his redeployment to the department of learning and development unit by a letter dated November 7th 2016, i.e. exhibit SA28; refusal to hand over to one Mrs. Hauwa Bello the Deputy Director of Internal Audit; the seizure of 2 audit stamp and the keys to the security safe of the 1st defendant. An examination of exhibit SA9 reveals that this infraction falls under disorderly behaviour (e.g. excessive noise-making, rude &obstinate behaviour) underline mine under clause 6.3.11 (sanctionable offences at pages 107). Clause
22.214.171.124 of exhibit SA9 provides that;
i. where an employee commits a misdemeanor or an offence which constitutes a breach of laid down rules and regulations, as contained in the employment Manual or that is not specifically provided but in no doubt constitutes a misconduct, such an employee shall be notified of the act of alleged misconduct and be required to make written representations of same within forty eight (48) hours to HRD copying the line Manager.
ii. Where the misdeamenour or offence as stated above involves an employee of the AGM grade level and above, such an employee shall be notified of the act of alleged misconduct and be required to make written representations of same within forty eight (48) hours to the Head HRD copying the Managing Director/CEO.
iii. Should the employee fail to comply with the request within the provided time frame, or refuses to receive the query, such employee shall be deemed to have admitted guilt of the allegation and the appropriate disciplinary sanction shall be levied against him/her. HRD shall take the necessary next steps implement the related penalties against such employee.
iv. In the case of misconduct involving an employee of the AGM grade level and above, The HHRA shall notify the MD/CEO and Board Committee on HR prior to implementing the related penalties/sanctions against such employee.
6.4.1 It is the policy of the organization to minimize absenteeism and chronic absenteeism. Employees are expected to put in a minimum of 40 hours of work per week. The official resumption time shall be not later than 8.30am while closing time shall be not earlier than 5.30pm daily.
6.4.3 An employee who has been absent for three or more consecutive working days is required, upon returning to work, to present a note from a licensed physician indicating the nature of the employee’s medical condition and any limitations to the HRD.
6.4.8 All unauthorized and or unreported absences shall be considered as absences without official leave (AWOL) and will be subject to the provisions of the disciplinary process and the employee shall not be remunerated for such period of absence.[Emphasis mine]
6.4.9 Any employee who is absent from duty for three or more consecutive working days without the requisite approval shall be considered to have abandoned his or her position and shall be recorded as a resignation not in good standing;
6.4.10 it is the responsibility of the employee to notify his/her line manager and HRM of any absence.
6.4.12 Furthermore absence without leave for five or more consecutive days shall be grounds for constituting a competence enquiry committee on grounds of incompetence and negligence of duty. The constitution and procedure competence enquiry committee will be in line with the provisions of the disciplinary hearing process and the HRD will be the secretariat of this committee.”
The claimant was issued a query by the 1st defendant on the 20th July, 2018 vide Exhibit SA 22 on the grounds that he hardly comes to work and that in fact on Tuesday and Wednesday 17th and 18th of July 2018 and also that on the 19th of July, 2018 he showed up for about an hour with no authorization. The Claimant on the 16th of February, 2018, vide exhibit 17 was formally invited by the 4th defendant to a meeting of a committee on the 1st defendant’s staff mattersslated for the 21st February, 2018. On the 20th of March, 2018,by Exhibit SA18, the 3rddefendant following the resolution from the Report of the committee set up to investigate the Management crisis at Nigerian Bulk Electricity Trading Plc, i.e.the 1st defendant,ordered the 1st defendant to effect the payment of salaries of the claimant and also to refrain from taking decisions which includes suspension of his salaries and emolument. The 1st and 2nd defendants refused to comply with this directive and this necessitated the letter dated 26th of March, 2018, id est exhibit SA 21 from the claimant to the 1st defendant. The claimant on the 25th July, 2018 responded to the query denying all the assertions against him. He was also invited to a disciplinary proceeding on the 10th day of December, 2018 exhibit SA27. The 1st and 2nd defendants stated vide their written submission that there is no law, regulation or evidence before this Court empowering any Minister to give directives of any nature to the 1st Defendant and the 1st Defendant is not statutorily subject to any individual ministerial directive notwithstanding the fact that the 4th Defendant is represented by the 3rd Defendant on the 1st Defendant’s Board of directors. They stated that the Guidelines Regulating the Relationship between Parastatals/State-owned Companies and their Supervising Ministries (ExhibitSA27) enjoins that “the Ministry is not to take over the running of the Parastatals/Government-owned Companies under them by getting involved in their day to day management.” The Guidelines also provides that “the enabling laws of parastatals empower Ministers to issue broad policy directives of a general nature to be observed by the Management Boards of Parastatals and Government-owned Companies.” They posited that taking steps or making any pronouncement in matters which relates to engagement, discipline and termination of the employment of any of 1st Defendant’s staff does not relate to policy formulation by the 3rd and 4th Defendants but an attempt to get involved in the day to day management of the 1st Defendant which is illegal and invalid. Parties are ad idem that the 1st defendant is a Government owned Company, however by exhibit SA27 that is the Administrative Guidelines Regulating the Relationship between Parastatals Government owed Companies and the Government it is clear that the Board of the 1st defendant should be responsible for the conditions of services of its staff as stated at paragraph 15 it provides thus;
Subject to the limitation imposed in these guidelines and the laws establishing the parastatals, the Board of the Parastatals shall be competent to conduct negotiations and consultations with the staff unions on staff welfare and conditions of service of their members.”
It is worthy to mention that at the period that the claimant’s salary was stopped the Board of the 1st defendant was dissolved. It is trite that the law does not exist in vacuum. It is plain on record of this Court that DW during cross examination when asked if at the period under consideration the 1st and 2nd defendants take instructions from the 3rddefendant, she answered in the affirmative and stated that they do take instructions from the 3rd defendant. She equally admitted that the 2nddefendant attended the ministerial committee because she accompanied her and the 2nd defendant cooperated with the committee, the import of which is that the 2nd defendant agreed to the supervision of the 3rd and 4th defendants over the 1st defendant and thus submitted to it. Infact by paragraph 14 of exhibit SA27, the Board and the management which includes the 2nd defendant shall not without reference to the Minister i.e. the 3rd defendant, take any action involving a change of policy or one which is likely to lead to public controversy. The issue of financial autonomy/self-accounting to the 1st defendant consequent upon which the office of the Accountant General transferred its staff to the 1st defendant’s Audit department leading to the cause of action in this case, is nothing but a policy issue as well as the controversy that which was aired on a radio program tagged “ Berekete family program” on the 16th and 23rd of November 2018 respectively, stated in exhibit SA27, should be an issue that the 2nd defendant ought to have tabled before the 3rddefendant in the absence of the Board. It is in the light of all these that I find that the 3rd defendant has the power to set up the ministerial committee and equally give directive to the 1stdefendant which is to be carried out by the 2nddefendant, in this case the issuance of exhibit SA18 is proper and ought to have been carried out by the 2nddefendant.I so hold.
Assuming but not conceding to the fact that the 1st and 2nd defendants can discountenance the directive of the 3rd and 4th defendants, it is germane to state that the claimant’s salary was stopped since 27th of December, 2017 and was issued a query in 2018 for absence without leave contrary to clause 6.48 of exhibit SA9. I say so on the premise that upon the stoppage of his salary, clause 6.48 presupposes (I reproduce for better emphasis) that “All unauthorized and or unreported absences shall be considered as absences without official leave (AWOL) and will be subject to the provisions of the disciplinary process and the employee shall not be remunerated for such period of absence.”[Underlines mine]. This was not the case in this instant suit as the claimant’s remuneration was stopped long before disciplinary process was taken against him. This is a case of putting the cart before the horse. The issuance of the query and setting up of a disciplinary committee after stoppage of his salary and emolument after about 7 months was an afterthought. It is trite as reiterated supra that parties are bound by the contract of employment as they must follow strictly the terms and conditions of employment.In effect, the 1st and 2nd defendants having failed to follow strictly its rules of engagement with the claimant is in breach of same and hence the act of the suspension of his salaries from December, 2017 till date is wrongful. Consequently, I resolve issue one in favour of the claimant.
With regards to claimant’s claim of 2017 and 2018 annual leave, it is clear by exhibit SA9 at clause 4.5.5 – 126.96.36.199 that claimant is entitle to annual leave. From the records before the Court precisely Exhibit A, an email dated 18th of August, 2017, sent to the claimant by one Abba Aliyu, the General Manager in L & D Department, it is seen that the claimant’s request for 9 days outstanding annual leave was rejected by the 1st and 2nd defendants on the grounds that the approval granted by Abba Aliyu is invalid in that the claimant has not relocated to his department yet and he indicated in the leave form that his department is internal audit. I have perused exhibit SA9 and I have not seen where an employee’s leave will be rejected on the premises for which claimant’s leave was rejected by the 1st and 2nd defendants in this present. It is trite in the World of work that annual leave is a statutory right of an employee and every employee is entitled to same. Infact the contract of claimant’s employment recognizes his right to leave as expounded in exhibit SA9. ILO Convention. C132 Revised in 1970for Holiday with pay, ratified by Nigeria, Articles 2 and 3 thereof provides that;
Art.2.This convention applies to all employed persons, with the exception of seafarers;
Art.3 Every person to whom this convention applies shall be entitled to an annual paid holiday of a specified minimum length.
Further to the above,Section 18 (1) of the Labour Act, Cap L1 LFN, 2010 provides that Every employee shall be entitled after twelve months continuous service to a holiday with full pay.It is clear from the two statutory provisions cited supra, that labour jurisprudenceabhors withholding of leaveunder any guise, ploy or reason whatsoever. Therefore the argument of the 1st and 2nddefendants that the claimant’s annual leave was rejected on the basis that he has not relocated to his new departmentL and D department is contrary to the statutory provision.It is in this light that I find and hold that the denial of the claimant’s 2017 and 2018 leave is wrongful, an unfair labour practice and against international best practice. I so hold.
Next, is issue two, which is whether or not the claimant is entitle to his claims. On the claimant’s claims on denial/embargo on access to National Health Insurance Scheme benefits, he stated vided paragraph 50 of his pleadings, that since the stoppage of his salary, emoluments and other entitlements including his National Health Insurance Scheme he has been rendered financially impotent to take on the duties of his family. The 1st and 2nd defendants vide its witness statement on oath at paragraph 61 denied this assertion as false and inconsistent. The law is elementary and trite that he who asserts must prove. see Section 131 of the Evidence Act supra, See the cases ofCadbury Nig Plc v Oni supra;Edosomwan v. Idugboe  LPELR-46423CA;George Onwudike v First Bank of Nig. Plc  LPELR, 20385. There is nothing on record evincing that he was denied his National Health Insurance Scheme benefits as he wants the Court to find for him and thus this claim must fail. I so find and hold.
The claimant prays for an order directing the immediate payment of accumulated salary and emoluments and all other benefits accruable to him as staff of the 1st Defendant, from 22nd December 2017 till date. It is right to re-emphasis that claimant’s employment in this case has not been determined but that his salary and other entitlements were withheld by the 1st and 2nd defendants. I have held supra that the 1st and 2nd defendants contrary to its terms and conditions of service withheld the claimant’s salary and other emolument wrongfully. Although the 1st and 2nd defendants argued that he did not work as stated by his line manager vide exhibit SA13, I find from exhibit SA13 that his line manager did infact state at paragraph 1 of that memo to the 2nd defendant that he engaged the claimant on different tasks. The import of which is that the claimant did actually worked and thus entitled to be paid his salaries and emoluments.Consequently I find that the claimant is entitled to his salaries from 22ndDecember, 2017 till today 11th of March, 2020. I so hold.
The claimant claims the sum of
N250, 000,000.00 (Two Hundred and Fifty Million Naira) as general damages in favour of the psychological trauma and injuries suffered by the Claimant as a result of the 1st and 2nd Defendants actions. It is the law that damages are designed to compensate for such results as have actually been caused. See the case of Godwin Chukwu & ors v Gabriel Makinde & anor  9 NWLR (Pt. 1038) 195 CA. It is trite that the Court cannot award general damages for psychological trauma and injuries which have not been proven. The claimant has failed to canvass evidence to substantiate his claim forsame, No medical report or any other document from either a psychologist or social worker evincing that he has suffered any psychological trauma. This issue requires material facts to convince the Court for the grant of his claim. This the claimant has failed to do. It is in consequence that I discountenance his claim for damages and dismiss same.
It is in the light of the above evaluation and reasoning that I find and hold that the Claimant’s Claims succeeds in part, in the final analysis and for the avoidance of doubt. It is declared and ordered as follows:
1. That the suspension of claimant’s salary and emolument is wrongful
2. That the refusal of his annual leave for 2017 and 2018 is wrongful, an unfair labour practice and against international best practice.
3. That his claims for denial on access to National Health Insurance Scheme benefits fails.
4. That the 2nd defendant lacks the vires to unilaterally suspend punish and/or withhold the salary, emoluments and all other benefits accruable to the Claimant.
5. That the claimant is entitled to all his salaries and emoluments and all other benefits accruable to him as staff of the 1st Defendant from 22nd December 2017 till today 11th of March, 2020.
6. That claimant’s claim d fails.
7. All sums awarded in this Judgment is to be paid within 30 days of this judgment, failure upon which it attracts 21% interest thereon per annum.
No Order as to cost.
Judgment is entered accordingly entered
Hon. Justice Oyebiola Oyejoju Oyewumi