IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP, HON. JUSTICE I. S. GALADIMA.
DATE: 24th July 2020. SUIT NO: NICN/OW/61/2017
STANLEY UCHE EZE CLAIMANT
ABC TRANSPORT LTD DEFENDANT
· C.E. OSUJI FOR THE CLAIMANT.
· EMEKA O. NWAGWU FOR THE DEFENDANT.
1. This Claimant was the Head of Accounts of the Defendant’s Port Harcourt Terminalwhen on 16/10/2013 the sum of N2,052,400.00 was allegedly stolen from the Accounts Office of the Defendant. Some of the Account’s Staff including the Claimant were arrested on the instigation of the Defendant’s Branch Managerand charged to Court by the Police. The alleged N2,052,400.00 were proceeds of sales made during the public holiday and purportedly collected by the Treasurer when the Claimant was on his two days off duty. The money was in turn given to the Claimant for safe keep and he in turn kept it in the iron safe provided in the Treasury of the Defendant Company. The Magistrate Court that tried the Claimant found him innocent and he was accordingly discharged on 28/2/2017 after a trial which lasted over three years. Meanwhile, the Defendant had placed the Claimant on indefinite suspension without pay and it did not either terminate or dismiss the Claimant.
2. Consequently, this suit was filed by general writ of complaint on 23/10/2017 for the following reliefs:
a. A Declaration that the Claimant is still an employee of the Defendant and entitled to all salaries, allowances and benefits of his office as Assistant Transport Manager (i.e. Head of Accounts) from 17th October 2013 till the day and month he is called to resume his duties as the Head of Accounts and his name, salaries, allowances, and benefits are restored in the Defendant’s payment voucher/sheet.
b. An order of this honorable Court compelling or directing the Defendants to pay the Claimantall his nets outstanding salaries, allowances, and benefits for the 3 years,4 months and 16 days amounting to N1,272,071.36 from the date of his arrest and detention,(i.e. 17th October 2013 till 28th February 2017 being the dates of determination of the criminal charges against him which he was discharged and acquitted of by the Magistrate Court.
c. An order compelling or directing the Defendant to pay the Claimant his net monthly salary of N31, 383.34 from 1stMarch 2017 till the day and month he is called to resume his duties as the Assistant Transport Manager and his name, salaries, allowances and benefits are restored in the Defendant's payment voucher/sheet.
d. A Declaration that the Claimant is not indebted to the Defendant to the amount of N2,237,588.36 posted (debited) to the Claimant’s account/cash position in the books of the Defendant.
e. The sum of N10,000,000 being general damages for the financial inconveniences the Claimant suffered and continues to suffer on account of his not being paid his duly entitled salaries, allowances and benefits for three years,4 months and 16 days and up till date that his salaries allowances and benefits are withheld by the Defendant.
f. Anorder of this honourable Court compelling or directing the Defendant to reverse the entry of the sum of N2,237,588.36.
g. Interest at 10% on the judgement debt from the date of judgement till the day the judgement debt is fully liquidated.
3. The Complaint is duly accompanied with the Statement of facts and the witness’ deposition as well as frontloaded copies of the documents the Claimant relied upon at trial.
4. The Defendant entered appearance on the 15/12/2017 and equally filed its defence and other processes on the same date. On 10/4/2019, the Defendant was granted leave to file an amended Statement of Defence. The witness’ deposition of 15/12/2017 was however retained in its original form. It is interesting to note that a fresh copy of the amended statement of defence was never subsequently filed despite the leave granted to the Defendant’s Counsel. Which in effect means that the Defendant’s suit is entirely based on the proposed amended Statement of Defence filed on 10/4/2019 and the witness’ deposition of 15/12/2017.
5. The Claimant who had elected to file a reply to the Statement of defence and a further deposition on the 25/4/2018, however sought for leave and filed an amended copy exactly a year after, on the 25/4/2019 while trial was still conducted.
6. Hearing in this suit initially begun before my learned brother Arowosegbe, J on 27/11/2017. It first came up before me for re mention on 4/10/2018. However, proper trial begun on 13/2/2019 after several adjournments at the parties’ behest.
7. On the said 13/2/2019, the Claimant testified on his behalf, adopting and relying on his deposition of 23/10/2017 and his further deposition of 25/4/2018. He tendered a total of 12 Exhibits. He was cross examined on a subsequent date, i.e. 11/4/2019 whereupon the Claimant’s Counsel closed his case.
8. The exhibits tendered by the Claimant are as follows:
a. EXHIBIT C1 –MAGISTRATE COURT CHARGES AGAINST THE CLAIMANT AND TWO OTHERS IN CHARGE NO: PMC/2241/2013.
b. EXHIBIT C2 – APPLICATION FOR BAIL FORM FILED 6/7/17.
c. EXHIBIT C3 –PHOTOCOPY OF RECEIPT OF N200,000.00 ISSUED BY THE CLAIMANT’S SOLICITOR DATED 29/11/2013.
d. EXHIBIT C4 – PHOTOCOPY OF CTC OF POLICE INVESTIGATION REPORT DATED 22/10/2013.
e. EXHIBIT C5 – PHOTOCOPY OF HANDWRITTEN TRANSCRIPTS MADE BY THE CLAIMANT’S COUNSEL DURING THE CRIMINAL PROSECUTION OF THE CLAIMANT AT THE MAGISTRATE COURT.
f. EXHIBIT C6 – JUDGEMENT OF THE MAGISTRATE COURT IN CHARGE NUMBER PMC/2241C/13 DELIVERED ON 28/2/2017.
g. EXHIBIT C7 –PHOTOCOPY OF MERIT AWARD TO THE CLAIMANT DATED 10/12/2011.
h. EXHIBIT C8 –CLAIMANT’S PAY SLIP FOR THE MONTH OF SEPTEMBER2013.
i. EXHIBIT C9 – DEFENDANT’S CASH POSITION REPORT FROM 1/1/2006 TO 28/7/2017.
j. EXHIBIT C 10 – CLAIMANT SOLICITOR’S LETTER OF 30/8/2017 REQUESTING FOR THE PAYMENT OF ARREARS OF SALARIES AND THE RECALL OF THE CLAIMANT BY THE DEFENDANT.
k. EXHIBIT C11 –LETTER RECOMMENDING THE SUSPENSION OF THE CLAIMANT BY THE DEFENDANT DATED 20/10/2017.
l. EXHIBIT C12 – TERMS AND CONDITIONS OF SERVICE (2ND EDITION).
9. The Defendant relied on the testimony of one witness as well on 17/7/2019. Magnus Egbuhuzor testified adopting his deposition of 15/12/2017. He was duly cross examined by the Claimant’s Counsel on that same date whereupon the Defendant closed its case. The exhibits tendered by and through DW1 are as follows:
a. EXHIBIT D1 – LETTER OF SUSPENSION OF CLAIMANT DATED 1/11/2013.
b. EXHIBIT D2 –LETTER OF REPLY TO THE CLAIMANT’S SOLICITOR BY THE DEFENDANT DATED 2/10/2017.
c. EXHIBIT C3 – PHOTOCOPY OF STATEMENT OF WITNESS BEFORE THE POLICE.
d. EXHIBIT D4 – SIGNATURE SPECIMEN OF DW 1 TAKEN IN OPEN COURT ON 17/7/2019.
e. EXHIBIT D5 – INITIALS SPECIMEN OF THE DW 1 TAKEN IN OPEN COURT ON 17/7/2019.
10. At the conclusion of trial, the parties’ Counsel were ordered to file their respective final written addresses and submissions consequent upon which this Defendant’s Counsel filed his on 10/12/2019. The Claimant’s was filed on the 5/3/2020. The Defendant subsequently, filed a reply brief on 12/3/2020. The matter was adjourned twice for adoption from 9/3/2020 to 29/4/2020. As a result of the COVID 19 pandemic and the national lockdown. However, the parties’ Counsel were unable to adopt their respective final addresses on the latter date prompting this Court to cause a notice to be served on the parties to adopt their respective positions today and to immediately deliver this judgmentto forestall further andunnecessary protraction of the cause.
DEFENDANT’S FINAL WRITTEN ADDRESS AND SUBMISSIONS:
11. The Defendant’s Counsel raised two issuesfor this Court’s determination, thus:
a. Whether on the face of the judgment by the Magistrate Court, this Claimant was discharged and acquitted?
b. Whether the Claimant is still in the employment of the Defendant so as to entitle him to his claims?
12. In arguing issue 1 above, the learned Counsel relying on Sections 245 and 246 of the Criminal Procedure Act 2004 stated that the Claimant was not acquitted by the Magistrate Court of the charges against him. That he was merely discharged but the word ‘acquittal’ was not used by the Magistrate. It means therefore that since the Magistrate found him not guilty, he ought to have discharged and acquitted him. He cited the case of BAMIDELE AJAYI AND ORS V. THE STATE (citation supplied) to buttress his point.
13. As such, an accused who is merely discharged can be prosecuted again by another Court of competent jurisdiction. As such, having only been discharged by the Magistrate, this Court must find that the charges still hang on the Claimant’s neck. He urged this Court to find in favour of the Defendant in respect of this 1st issue.
14. On his issue 2, learned Counsel submitted that the Claimant can no longer be said to be in the employment of the Defendant. This is accordingly so because the relationship between the parties is purely common law master and servant. That the employment relationship is not one governed or protected by statutes as such, the Claimant’s rights can only be determined by the contents of any letter of employment he may have.
15. Learned Counsel argued that unfortunately, this Claimant did not tender his letter of employment purportedly made on 22/7/2006. In the absence of such letter, this Court cannot make any determination on the claims made by him. It must therefore be held that the Claimant did not discharge the burden of proof on him pursuant to Section 134 of the Evidence Act – IGWE V. ALVAN IKOKU COLLEGE OF EDUCATION OWERRI (citation supplied). That even though the Claimant tendered his conditions of service as Exhibit C12, the same document does not help his case in the absence of his letter of employment.
16. Counsel argued that it was not in doubt that the Claimant was in custody of the Defendant’s money which was N2,052,400.00 and that the same money got missing in his custody. He said contrary to the Claimant’s assertion, the Police investigated and charged him to Court and so it was untrue that it was the Defendant that instigated the Police to make the arrest and his subsequent detention. He also submitted that the Police never exonerated the Claimant as alleged by him as even the Exhibit C4 he tendered does not contain such insinuation.
17. Pages 26 – 29 of Exhibit C12 – the terms and conditions of service, deals with discipline generally and it is important for this Court to refer to same to discover that where an allegation is made against an employee for theft or dishonesty in removal of the Defendant’s property without permission, the sanction is an outright dismissal. The Claimant ought to be dismissed by the Defendant since he was not even discharged and acquitted by the Magistrate Court, argued the learned Counsel.
18. He said that Exhibit C11 was concocted by the Claimant and it cannot be relied on by this Court to show when the Claimant was suspended by the Defendant. That the Exhibit D2 tendered by the Defendant is more authentic as to when and in what manner the Claimant was suspended. He urged this Court to find that that Exhibit C11 was doctored and no foundation was even laid by the Claimant before he tendered same. Counsel argued that the Claimant was bound to inform this Court where he obtained that Exhibit C11 and since he failed so to do, the document was unreliable even as same is illegal. He cited SADAU V. THE SATE (citation supplied) and HARRIS V. DPP (citation supplied) to buttress his point.
19. Counsel further argued that the Claimant did not work for the Defendant from 17/10/2013 as such, he cannot be entitled to any arrears of salary. The Claimant can also not be reinstated as the relationship between the parties is master/servantand is different from a statutory flavored employment.
20. The learned Nwagwu urged that this relationship not being statutory in nature, this Court cannot declare that the employment between the parties subsists to date. He stated that even though Section 17 (1) of the Labour Act 2004 provides that if an employer fails to provide work for his employee he is still liable to pay the employee’s salary, but the rider in 17 (1) (b) states that the employer is not obliged to pay where the employee is suspended from work as a punishment for breach of his employment terms or for discipline for any offence committed.
21. He finally urged the Court to dismiss the Claims as same is preposterous.
CLAIMANT’S FINAL ADDRESS AND SUBMISSIONS:
22. The Claimant’s Counsel raised three issues for determination thus:
a. Whether the Claimant was actually suspended by the Defendant and his appointment formally terminated throughout the period the Claimant was tried at the Magistrate Court;
b. Whether Claimant was discharged and acquitted by the Magistrate Court despite the Court not specifically using the word ‘acquitted’ in its judgment?
c. Whether the Claimant proved his case on a preponderance of evidence to entitle him to the reliefs sought?
23. On issue 1, the learned Claimant’s Counsel submitted that it is not in doubt that the Claimant was never terminated or dismissed by the Defendant to date. That it was only when the Claimant’s solicitor wrote a letter to the Defendant demanding that the Claimant be paid arrears of salaries and reinstatement to work as contained in Exhibit C10 that the Defendant purported to make a document known as a suspension letter (Exhibit D1). He said that Exhibit D1 was concocted by the Defendant and backdated to give the effect that the Claimant was placed under suspension from the date of the allegation made against him.
24. Counsel referred to the handwritten minutes on Exhibit C11 which the Claimant tendered as proof that the Defendant acted mala fides. He illustrated that those minutes were made by principal staff of the Defendant’s organization after the Claimant was discharged and acquitted by the Magistrate Court. He said also that the Claimant could not have manufactured Exhibit C11 as the events leading to theproduction of Exhibit D1,are clearly provided on the said Exhibit C11 and it suggests that the Defendant intend to inveigle this Court with falsehoods. He argued on that Exhibit D1 was signed by one of the staff of the Defendant company instead of one Evaristus Eze who was then, the People’s Manager between October/November 2013 and he ought to have been the proper person to sign the suspension letter if it were genuine. He wants this Court to consider the admission made by DW1 under cross examination to the effect that there was no letter of suspension or termination issued to the Claimant at the time he was facing trial before the Magistrate Court.
25. He said besides, if the letter of suspension had been written, the same would have been served on and duly acknowledged by the Claimant. So, to the extent that there is no evidence of service or acknowledgment of receipt on the said Exhibit D1, the same must be held by this Court to have been concocted.
26. Counsel argued further that the face of evidential law in Nigeria has long changed as any evidence relevant to proving the existence of any fact in issue, shall become admissible in law irrespective of how it was obtained. As such, the fact that the Claimant did not establish how he came about his Exhibit C11 cannot be fatal to his case. He relied on TORTI V. UKPABI (citation supplied). He reemphasized that evidence obtained improperly or even in contravention of the law, is still admissible, unless the Court thinks otherwise. That the cases of SADAU V. THE STATE and HARRIS V. DPP (citations supplied) cited and relied upon by the Defendant’s Counsel, were obsolete and no longer the position of the law in this regard.
27. On the admissibility of the Defendant’s Exhibit D2, learned Counsel argued that not only is that letter nonexistent, same was never sent to the Claimant or his Counsel purportedly in reply to the Claimant Counsel’s letter of 30/8/2017(tendered as Exhibit C10). He said besides, the letter (Exhibit D2) was clearly written ‘without prejudice’ as stated on the face of it as such, it is not admissible for the purpose of forming an opinion by this Court. He urged this Court to expunge same from this Court’s records by virtue of Section 196 of the Evidence Act.
28. He argued on that assuming the Claimant was suspended without pay by the Defendant before his acquittal by the Magistrate Court, now that his acquittal was confirmed by the Magistrate Court, the Claimant ought to be held to be entitled to his arrears of salaries for the entire period he was falsely accused and prosecuted. He urged the Court to resolve issue number 1 in favour of the Claimant.
29. On whether the Claimant was discharged and acquitted by the Magistrate Court, learned Counsel submitted that having been found not guilty by the Magistrate Court, the Claimant was discharged and acquitted in effect. He relied on CHIEF OF AIR STAFF AND ORS V. WING COMMANDER P.E. IYEN (citation supplied). The presumption is that the trial was duly conducted to the end and the Claimant was eventually found not to have committed the offence. He said even though the Magistrate did not use the word ‘acquitted’in his finding, a thorough perusal of Exhibits C4 and C6 leaves no one in doubt as to the fact that the Claimant was actually discharged and acquitted. He thus urged this Court to resolve this issue in favour of the Claimant.
30. On issue 3 which is whether this Claimant has proven his case on a preponderance of evidence, learned Counsel argued that the Claimant’s case succeeds in the end despite the falsehoods put up by the Defendant that the allegation against the Claimant was duly investigated by the Defendant company before the Police charged him to Court. He said the evidence of the DW1 under cross examination even admitted to the fact that the Claimant was first reported to the Police and that there was no time the Defendant set up an inquiry to find out the culpability of the Claimant.
31. Counsel submitted that though he concedes to the fact that the relationship between the parties was purely master/servant, but the fact still remained that the Claimant was never formally terminated or even suspended by the Defendant. He impressed on the Court to distinguish this case from SDPC NIG. LTD V. LAWSON-JACK (citation supplied) which was relied upon by the Defendant since in that case, the respondent was suspended by the appellant with pay before his employment was eventually terminated. He acknowledged that a servant cannot be foisted on an unwilling master – OLANIYAN V. UNILAG (citation supplied) – but an employer is duty bound to settle all the outstanding obligations it owes the employee before disengaging his services.
32. He said contrary to what the Defendant’s Counsel submitted, the Claimant did not refuse to work for the Defendant and that section 17 of the Labour Act does not apply to the circumstances of this case.
33. He argued on that the Defendant’s witness does not have any sworn deposition before this Court since by Exhibits D4 and D5, the Claimant was able to prove that the signature on the deposition of 15/12/2017 does not belong to the witness. He said the variations were so clear and a cursory look at them showed that the witness did not sign the sworn written deposition. Should this Court find that the deposition was not signed by DW1, it means that the Defendant’s statement of defence is unsupported by evidence. He therefore urged this Court to in the interest of justice, determine this suit in favour of the Claimant and grant all his reliefs as sought.
REPLY TO CLAIMANT’S SUBMISSIONS:
34. The Defendant’s Counsel filed a reply brief wherein he argued that the Claimant’s submissions must be completely discountenanced. He argued that the authority of TORTI V. UKPABI (supra) as well as SADAU V. THE STATE (supra), are contrary to what the Claimant’s Counsel argued, still the relevant and only position of the law and urged the Court to apply the principles there to this case.
35. He said Counsel’s arguments, no matter how brilliant, cannot take the place of evidence. As such, all the Claimant’s Counsel did, was to give evidence instead of arguing the case on law. On the whole, he urged this Court to discountenance the arguments proffered by Counsel to the Claimant and to dismiss these claims as they are accordingly, unmeritorious.
36. I have gone through the entire processes filed and the evidences admitted in this suit by both sides. I am convinced that the issues raised by the respective Counsel in their final written addresses can be narrowed down to a sole issue for determination which is whether the Claimant is entitled to the reliefs sought. The issues distilled by the learned Counsel shall be answered in the course of making my findings on this issue.
37. Before I proceed to determine this issue, there isneed to clear a certain misconception. Both Counsel isolated and argued the issue whether the Magistrate Court exculpated the Claimant of the charges before it or not. The Claimant tendered Exhibits C4 and C6 in an attempt to convince this Court that even though the Police had recommended that the Claimant could not have committed the offence of conspiracy and stealing, the Defendant still instigated the Police to prosecute him nonetheless before the Magistrate Court along with the other two suspects – now convicts. The Claimant Counsel also sought to establish that his client was found not guilty by the Magistrate at the conclusion of trial. The Defendant’s Counsel however, argued that the Magistrate did not use the word ‘acquitted’ in his judgment (Exhibit C6) as such what he merely did was a discharge without prejudice to him being subsequently prosecuted again.
38. The truth is these are arguments that should ordinarily have been canvassed at the High Court Appeal Sessions against the decision of the Magistrate Court. This Court indeed lacks the appellate jurisdiction to determine whether the Magistrate Court committed any error when it failed to write ‘discharged and acquitted’in its judgment.
39. Despite this observation however, it does seem that the judgment of the Magistrate Court which was made on 28/2/2017, was never challenged on appeal by the Defendant. The inference therefore is the Defendant waived its right of appeal anddecided to be bound by the said judgment sinceit was delivered 3 years ago.
40. From Exhibit C6 which is apparently askeleton of the judgment by the Magistrate Court, only the other two persons charged along with this Claimant, were convicted of the offences of conspiracyand stealingcontrary to sections 516and 390 (6) of the Criminal Laws of Rivers State and sentenced to pay fines of N100,000.00 or six month’s imprisonment. This Claimant was not convicted by the Court. It is interesting to note however, that the judgment does not specifically mention whether he was discharged or acquitted of the offences (at least not on the face of the document).
41. What strikes me the most about Exhibit C6 is the inelegance and lack of legal skill andcraftmanship put in by the Chief Magistrate in his pronouncement. But, since it is absolutely not within this Court’s powers to review or sit on appeal overthat decision, I shall only restrict myself to interpreting what I believe is the intention of the Court as far as the culpability of this Claimant is concerned. So, as far as I can tell from Exhibit C6, the Magistrate stated that “the 1st Defendant (this Claimant) has not been adequately linked to the offence. The only link is that he holds the key to the safe. This may not be sufficient for circumstantial evidence to be sustained…” (see pages 3 and 4 of Exhibit C6).
42. Furthermore, in page 4 of the same judgment, the Chief Magistrate reasoned that “I hold that the Prosecution has made out a case against the 2nd and 3rd Defendants in respect of Counts 1 and 3. I agree with the investigation report of the IPO. Pw1 knows the code number of the safe being the manager and connived with the 2nd and 3rd defendants to commit this crime. They wanted to use the 1st Defendant as a shield since he is the custodian of the safe…the circumstantial evidence is so overwhelming to show that the 2nd and 3rd defendants with the Pw1 committed the offence. I thus find no difficulty in convicting the 2nd and 3rd defendants on counts 1 and 3 respectively”.
43. As stated earlier, this Court lacks the jurisdiction to determine whether the Magistrate was wrong or not in declaring that this Claimant having been found not guilty, should have been discharged and acquitted by the Magistrate.
44. Anyway, it will only matter whether this Claimant was discharged and acquitted by the Magistrate Court if he was specifically suspended by the Defendant and his continued employment with the Defendant depended on his exoneration or not by the Court.The reason for saying so is that although the relationship between these parties is a common law master/servant, the letter of employment (if any) and the terms and conditions of service may spell out the duties and liabilities of the parties expressly. In the absence of such provisions, the Court is bound to rely on the Labour Act to determine the rights and liabilities of the parties. Ultimately though, the master still determines whether he wants to retain the servant’s services or not especially where the servant isexpressly suspended pending the outcome of an investigation.
45. Unless a contract of employment states otherwise, where a servant is accused of committing an offence and he is placed on an indefinite suspensionwith or without pay by his master pending the outcome of an investigation or prosecution, it is reasonable to expect that once the investigation or prosecution is concluded and he is exculpated or not, the servant’s fate be determined by the master immediately. This is because unless the contract of employment is specifically terminated ordismissedwhen the investigation or prosecution is concluded, the contractof employment will be deemed to subsistfrom the time the Claimant was suspended till the time it is actually severed by the employer/master or by the Court – see the recent case of CALEB AHAOMA IKPA V. HERITAGE BANK AND ANOTHER (unreported) suit no NICN/OW/44/2018 delivered on 10/7/2020 where this Court held that it amounted to unfair and oppressive labour practice for a servant to be placed on indefinite suspension without pay for an inordinate and uncertain length of time.
46. Therefore, the question to determine now is whether this Claimant was suspended without pay by the Defendant? It must be observed that the Claimant never tendered his letter of employment even though it seems there is no controversy whatsoever if he was employed or not by the Defendant. The letter, if available, may have guided this Court in determining if the Defendant can suspend him with or without pay for an indefinite period. The terms and conditions of service was however tendered as Exhibit C12.
47. Under Article 6.1 titled ‘Discipline’ on page 27 and 28 of Exhibit C12, in column numbers 18, 27, and 28 which providethe recommended disciplinary measures for allegations of ‘Dishonesty or Removal of Company Property Without Permission’, ‘Proven cases of Financial Fraud’ and ‘Petty Thievery’, none of these allegations when found against an employee, recommend indefinite suspension without pay as a disciplinary measure. It is even curious that the offence of stealing of company funds or property was not specifically provided for in Exhibit C12.
48. What this means is that even if I believed that the Claimant was placed on indefinite suspension without pay as suggested in Exhibit D1 and argued by the Defendant’s Counsel, such decision was not based on any of the Claimant’s terms and conditions of service as contained in Exhibit C12. If it was, it did not become apparent to me from that document (which was by the way properly scrutinized before arriving at this conclusion). Besides, the Defendant had not established or proven to this Court that the suspension was based on the terms and conditions of the Claimant’s employment. It means that Exhibit D1 was written arbitrarily as an administrative measure against this Claimant. In view of this, the arguments canvassed back and forth by the respective Counsel on the legality of Exhibits C11and D1 are a complete waste of time, and I so hold.
49. Automatically, from the time the Defendant withheld the payment of the Claimant’s salaries, it must be presumed that he had been suspended whether or not a letter of suspension was given to him. The real issue to determine is in the absence of a termination or dismissal letter, whether the Claimant is entitled to any of his reliefs?
1. From the facts and circumstances of this case, it was indeedreasonable and justifiable that the Claimant’s salaries and benefitswere stopped by the Defendant Company when he was alleged to have committed the offence and was arrested and investigated by the Police and subsequently prosecuted in a competent Court of law. When it became apparent however that he did not commit the said offence, the Defendant should have decided his fate either by terminating his employment orreinstating him – see VICTOR C. ENYIDEDE V. ROCHE CONSTRUCTION NIG. LTD AND ANOR (UNREPORTED) suit No: NICN/EN/105/2013 which judgment was delivered per Anuwe J,at page 15 – I completely agree with my learned brother in that case when she said that “… it is clear that suspension does not amount to termination of employment. An employee on suspension is nonetheless an employee until terminated (or dismissed). In this case, Exhibit CC5 put the Claimant on an indefinite suspension and the Defendants have not proved that the Claimant’s employment had at any time thereafter been terminated. The Defendants could not convince this court by evidence that the claimant was given any notice of termination of his employment. By the letter of indefinite suspension without more, the claimant’s contract of service still subsists. His employment had not been determined at all. The claimant has therefore continued to be in the 1st Defendant’s employment since the time of his suspension till now.”
50. Having thus found that thesuspension was not based on the Claimant’s terms and conditions of service, this Court must resort to the doctrines of natural justice and equity to determine the propriety or otherwise of that indefinite suspension without pay.
51. Now, since the Magistrate Court did not specifically find this Claimant guilty of the alleged offences for which he was tried, it means his employment with the Defendant subsists in the absence of any letter terminating it. He is therefore entitled to be paid all his salaries from the time they were withheld, till the date of this judgment, and I so hold.
52. Being a purely master/servant relationship, the Claimant cannot be reinstated to the position he occupied before his indefinite suspension. As such, his employment with the Defendant is hereby terminated with effect from the date of pronouncing this here judgment. Relief number 1 of his claims is therefore not granted to the extent that the Defendant cannot be ordered to reinstate him.
53. Relief number 5 which is for N10,000,000.00 general damages is also hereby refused in the absence of any specific particulars justifying the award of such sum.
54. Reliefs numbers 2, 3, 4, and 6 succeed to the extent that the Defendant is ordered to pay all the Claimant’s salaries from 31stOctober 2013 to 31st July 2020, which is 81 months multiplied by his last known salary of N31, 383.34 per month. This totals N2,542,050.54 only. The said sum shall be paid within 30 days which shall in default, attract a 10% interest per month until it is fully liquidated.
55. This Court awards the sum of N500,000.00 as cost of prosecuting this suit to the Claimant to be paid within 30 days and in default, attract a 10% interest per annum until fully liquidated.
56. The other issues raised and argued by these Counsel now doth become academic as the answers to them will not sway my decision one way or the other away from what has been above found, held and pronounced.
57. The Claimant’s suit partly succeeds. Judgment is accordingly entered.
Delivered in Owerri this Friday, the 24th day of July 2020.
Hon. Justice I.S. Galadima.