IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
ON THE 5TH SEPTEMBER, 2022 SUIT NO. NICN/LA/63/2020
BETWEEN
AKINRINADE ADEBOWALE - CLAIMANT
AND
ORCHID HOTELS LIMITED - DEFENDANT
REPRESENTATION:
Chidozie Uzowulu for the Claimant
John Agbonika for the Defendant.
JUDGMENT
The Claimant commenced this suit by way of complaint and other accompanying processes filed on 19th February, 2020 and asked for the following reliefs as contained in the statement of facts against the Defendant;
“1. A declaration that the act of the Defendant suspending the Claimant indefinitely without pay is unlawful not being provided for in the Contract of Employment between the Defendant and the Claimant.
2. A declaration that the willful deduction of the sum of N45,000.00 (Forty-Five Thousand Naira) from the salary of the Claimant for the period of September, 2015 to May 2016 respectively by the Defendant without the Claimant’s consent is unlawful.
3. The sum of N79, 677.42 (Seventy-Nine Thousand Six Hundred and Seventy-Seven Naira Forty-Two Kobo) being the Claimant’s pro-rated salary for the remainder part of the month of August, 2019.
4. The sum of N753,563.16 (Seventy Hundred and Fifty-Three Thousand, Five Hundred and Sixty-Three Naira Sixteen Kobo) net of tax being the Claimant’s salary for the period of September to December 2019 at the rate of N190,000.00 (One Hundred and Ninety Thousand Naira) (less tax) per month.
5. The Claimant’s pro-rated salary from the 1st of January, 2020 up until the date of judgment in this matter or up until the Claimant’s Contract of Employment is properly terminated whichever is earlier.
6. The Claimant’s bonus tied to the Defendant’s financial performance every month in the sum of N48,000.00 (Forty-Eight Thousand Naira) from August 2019 up until the date of judgment in this matter or up until the Claimant’s Contract of Employment is properly terminated whichever is earlier.
7. A refrigerator of the same type was given to all employees of five (5) years and above in December, 2019 which the Claimant is entitled to as provided in Clause 35 of the Defendant’s Employee Handbook.
8. The sum of N2,500.00 (Two Thousand Five Hundred Naira) being the equivalent of the daily meal provided to all employees of the Claimant’s grade in the Defendant, for each working day commencing from the 20th of August, 2019 up until the date of judgment in this matter or up until the Claimant’s Contract of Employment is properly terminated whichever is earlier.
9. The Claimant’s Christmas entitlement/bonus for the year 2019 of the same type that was given to all employees of his grade in the Defendant.
10. The sum of N405,000.00 (Four Hundred and Five Thousand Naira) being the total sum illegally deducted from the Claimant’s salary without the Claimant’s consent, from September 2015, to May 2016 at the rate of N45,000.00 (Forty-Five Thousand Naira) per month.
11. The sum of N5,000,000.00 (Five Million Naira) being general damages for the emotional and financial hardship the Claimant has been experiencing because of the Defendant’s unlawful act of suspending him without pay.
12. An order directing the Defendant to pay the Claimant’s statutory pension contributions for the month of December 2014 and from the period between September 2015, to August 2019 and the outstanding pension contributions which the Defendant failed to remit for the period between January 2015 to August 2015 into the Claimant’s Retirement Savings Account with Stanbic IBTC Retirement Savings Account being the Claimant’s Pension Fund Administrator.
13. Interest on all the accrued sum at the rate of 21% per annum till the date of judgment in this matter and at the rate of 21% till the judgment sum is finally liquidated.
14. The cost of N350,000.00 (Three Hundred and Fifty Thousand Naira) only as the cost of the action."
The Defendant upon being served with the Claimant’s initiating processes, entered appearance and filed its Statement of Defence on 7th July, 2020 via an order of court for extension of time to that effect.
CASE OF THE CLAIMANT
It is the case of the Claimant from his pleading and evidence filed that he was employed by the Defendant as a Chief Security Officer by a letter dated 19th November, 2014 and was confirmed by another letter dated 23rd June, 2015.
According to the Claimant, sometime in July, 2019, he was instructed by the Chairman of the Defendant to recover a bus belonging to the Defendant which was impounded by the Lagos State Traffic Management (LASTMA).
Claimant averred that whilst he was preparing to take his breakfast and medicine, the Chairlady of the Defendant sent for him and instructed him to accompany her to LASTMA's office to recover the impounded bus, but he requested for few minutes from the Chairlady to enable him have his breakfast and take his medicine. However, the Chairlady unknown to the Claimant had already left for LASTMA before he was done with his breakfast.
It was averred that, following the above incident, he was issued a query for alleged insubordination which he immediately responded to. That he was thereafter issued a Strong warning letter and subsequently a letter of Indefinite suspension without pay pending a decision to be made by the Management which the Defendant has failed to communicate to the Claimant.
It was further averred that the Defendant has failed to remit the Claimant's pension contribution to his Retirement Savings Account(RSA) for some certain period of time.
Claimant also stated that the Defendant between September 2015 to May, 2016 without his consent deducted from his salary the sum of ₦405,000,00.
CASE OF THE DEFENDANT
For the Defendant, the Claimant was queried because he failed and or neglected to carry out the instruction of the Chairlady to accompany her to LASMA's office two hours after the said instruction was given. That the Defendant was not satisfied with the response of the Claimant to the query and he was therefore given a strong warning letter and advised to write an apology letter to the Chairlady but upon his failure to deliver the said apology letter as requested, the Claimant was issued a letter of indefinite suspension.
It was stated by the Defendant that it did not inform the Claimant of its decision following his suspension because the Claimant had already taken up employment with another organization.
The Defendant further averred that in August 2015, they were in financial distress and were unable to fully meet the obligations of staff, business partners and welfare providers. As a result of this therefore, by various resolutions in one of the meetings in September 2015 which the Claimant was in attendance, they had to reduce staff salary for managers and above by 25%, and temporarily suspend the deduction of pension contributions for all staff salary. That based on this, the Claimant’s salary was reduced by 25% but was restored to its original gross salary in June 2016. That the Claimant at all times was in attendance and was aware of all the deliberations and resolutions taken but never objected to it in any way.
The Defendant admitted paragraph 12 of the Claimant's Statement of facts that it did not remit his pension contributions but stated that it is still in the process of computing the Claimant’s outstanding pension contribution for onward remittance to the Claimant’s Stanbic IBTC (RSA).
The Defendant contended that the Claimant’s suspension was lawful and that bonuses and daily meal or sum are paid to staff based solely on the discretion of the Management as they are not provided for under the terms of employment or Employee’s Handbook. That the Claimant is not at all entitled to any refrigerator as it was given only to employees in active service as at December 2019 and did not include those on suspension.
TRIAL
Trial in the instant case commenced on 22nd June, 2021 where the Claimant testified as CW1. He adopted his Statement on Oath dated 19th February, 2020 and tendered the following exhibits;
1. Letter of Provisional Appointment dated 19th November, 2014-Exhibit AA1.
2. Confirmation of Appointment Letter dated 22nd June, 2015-Exhibit AA2.
3. Employee Handbook-Exhibit AA3.
4. Query dated 2nd August, 2019-Exhibit AA4.
5. Letter of Indefinite Suspension without Pay dated 19th August, 2019-Exhibit AA5.
6. Statement of the Claimant’s RSA-Exhibit AA6.
7. Claimant’s pay slips from December 2014 to August 2019-Exhibit AA7.
8. Letter of Commendation dated 24th November, 2016-Exhibit AA8.
9. Solicitor’s Letter dated 13th January, 2019-Exhibit AA9.
10. Letter of termination dated 13th March, 2020-Exhibit AA10.
11. Invoice dated 18th February, 2020 issued to the Claimant by his solicitor-Exhibit AA11.
12. Certificate of Compliance-Exhibit AA12.
Claimant was cross examined and then discharged and closed his case as there was no re-examination.
The Defendant in its defence called one witness Patrick Apu(DW1) who adopted his Statement on Oath dated 13th July, 2020 and tendered the following exhibits;
1. Query issued to the Claimant dated 2nd August, 2019-Exhibit OH1.
2. Claimant’s response to the query-Exhibit OH2.
3. Strong warning letter dated 7th August 2019-Exhibit OH3.
4. Letter of Indefinite Suspension dated 19th August, 2019-Exhibit OH4
5. Commendation Letter dated 24th November, 2016-Exhibit OH5.
6. Extract of minutes of various meetings-Exhibit OH6.
7. Schedule containing the unremitted pension contributions for the Claimant-Exhibit OH7.
8. Defendant’s Employee Handbook-Exhibit OH8.
DW1 was cross examined by the Claimant’s counsel and later discharged after re-examination. The matter was then adjourned for adoption of final written addresses.
DEFENDANT’S FINAL WRITTEN ADDRESS
Defendant’s final written address which was filed on 9th November, 2021 was deemed as properly filed and served via leave of court. The final written address contains a lone issue for determination to wit;
"Whether having regards to the evidence led at trial, the Claimant has made out a case to be entitled to the reliefs sought in this suit against the Defendant."
Learned Counsel for the Defendant submitted that although the Claimant seeks a declaration that his indefinite suspension without pay is unlawful as same was not provided for in the claimant’s contract of employment as he placed reliance on Article 59 of Exhibit AA3. However, according to the Defendant, the suspension was lawful and appropriate as the Defendant has challenged that Exhibit AA3 is not the applicable version of the Employee's Handbook. That Exhibit OH 8 is the applicable and appropriate Employee's Handbook which clearly provides in Article 61 that disciplinary measures that could lead to a fine or suspension from work could be taken. Citing Bamisile v. NJC & Ors (2012) LPELR-8381 (CA).
It is Counsel's further submission that by reliefs 2 and 10 of the claim, the Claimant had asked the court to declare that the deductions applied to his salary between September 2015 to May 2016 without his consent was unlawful and is entitled to the payment of the said deductions. For the Defendant, the Claimant consented to the said deductions which were temporary. Referring Exhibit OH 6 which is the extract of various meetings held in respect of the deductions. Citing also the case of Bichi Investment Nig. Ltd v. Sybron Medical Centre Ltd & Ors (2020) LPELR-51194 (CA) where the court held that a document speaks for itself.
On the issue of admissibility of Exhibit OH 6, Defendant argued that the Claimant has failed to lead any cogent evidence to proof this assertion. That the admissibility of evidence is based on relevance to the facts in issue. Citing Abubakar v. Chuks (2007) LPELR-52 (SC).
Learned Counsel contended that the Claimant is not entitled to reliefs 3, 4 and 5 which are for salaries for the period he was on suspension from the Defendant. That the Defendant terminated the Claimant’s employment via a letter dated 13th March, 2020.
That reliefs 4, 5, 6, 8 and 9 are speculative because they are hinged on the uncertain premise that the Claimant would have remained in the employment of the Defendant for the period being claimed. Citing Umoh v. Industrial Training Governing (2001) 4 NWLR (PT. 703) 281 at 301; Wilbros Nig. Ltd & Anor v. Macaulay (2009) LPELR-850 (CA). That the Claimant In the instant case, having been lawfully suspended and ultimately terminated by the Defendant, is not entitled to the reliefs claimed.
It is counsel's contention that damages as claimed in relief 11 cannot be sustained in the instant case as it will amount to double compensation. Citing Adekunle v. Rockview Hotel Ltd (2003) LPELR-5414. That assuming without conceding that the Claimant is entitled to the damages claimed in relief 11, the Claimant owes himself a duty to mitigate his losses. Citing Weco Engineering and Construction Co. Ltd v. Dufan (Nig.) Ltd & Anor (2019) LPELR-47211 (CA).
That By Exhibit OH 3, the Defendant offered not to institute severe disciplinary action against the Claimant, but asked him to write a formal apology letter to the chairlady of the Defendant which he failed to do up to the date of his termination.
It was also contended that the Claimant is not entitled to relief 14 of his claim as the amount paid to his counsel for bringing this action against the Defendant has not been actually proved to be paid. That an invoice is nothing more than a request for payment as opposed to a receipt which is a definite proof of payment that signifies that goods or services have been paid for, and upon which such receipt or payment of money is acknowledged.
Counsel further submitted that by relief 12 of the claim, a portion of the Claimant’s pension for the period of December 2014, September 2015 to August 2019 and January 2015 to August 2015 were not remitted albeit with the consent of the claimant as no pension deductions were made from the claimant’s salary from September 2015 to August 2019 which he admitted under cross examination. That the Claimant is only entitled to the Defendant’s 10% contribution as the claimant’s 8% contribution formed part of his remuneration during his employment. Citing Mancha & Ors v. Emukowate (2017) LPELR-43113 (CA).
CLAIMANT’S FINAL WRITTEN ADDRESS
Claimant’s final written address was filed on 20th December, 2021 wherein Counsel for the Claimant submitted two (2) issues for determination to wit;
"1. Whether in view of the evidence placed before this Honourable Court during trial, the purported indefinite suspension without pay of the Claimant by the Defendant is not unlawful; and
2. Whether given the circumstances of this case, the deductions from the Claimant’s salaries by the Defendant within the period September 2015, to May 2016 was not unlawful."
Learned Counsel submitted that it is a principle of law that an employer does not have an implied right to suspend an employee as a disciplinary measure. Citing Mobil Producing Nig. UNLT & Anor v. Udo (2008) LPELR-8440 (CA). That the Defendant in the instant case has failed to prove that it had the contractual power to suspend the Claimant indefinitely without pay. Referring to Exhibits AA1, AA3 and OH8.
Counsel also submitted that whilst an employer under justifiable circumstances is entitled to suspend an employee as a disciplinary measure to protect the employer’s business or to conduct investigations, such entitlement on the part of the employer does not come with the additional implied power to withhold salaries during the period of the said suspension. That Article 61 of Exhibit OH8 does not authorize the Defendant to suspend an employee without pay. According to the Claimant, the Courts have consistently held that where it is shown that an employee was unlawfully suspended without pay whilst the contract of employment subsists, such employee shall be entitled to his or her salaries and entitlements as long as the contract of employment subsists. Citing Ukoha & Anor v. Osilama (2016) LPELR-42936 (CA).
Counsel further submitted that in determining the period to be taken into account for the computation of the Claimant’s salary, the date (16/7/2020) the Claimant was served the termination letter shall be taken into account. According to the Claimant, the termination letter (Exhibit AA10) dated 13th March, 2020 was served on the Claimant by the Defendant on 16th July, 2020 during the pendency of this suit.
It was argued by the Claimant that Exhibit AA10 being a document prepared by the defendant (an interested party) during the pendency of this suit is inadmissible and ought to be discontinuanced by this court. Citing Mati Musa v. The State (2019) LPELR-46350 (SC).
Claimant further argued in the alternative but without conceding that if the Court is mindful to accept Exhibit AA10 as admissible, then the Claimant’s salary should be computed up to the 16th day of July, 2020 being the date the claimant was served the termination letter.
Claimant also contended that he is entitled to one-month salary in lieu of notice since he wasn’t given any and this was admitted by DW 1 during cross examination.
Learned Counsel posited on issue two that within the period of September 2015 to May 2016, deductions were unlawfully imposed on his salary by the Defendant and the Defendant relied on exhibit OH 6 that the Claimant consented to the deductions. However Claimant’s counsel argued that Exhibit OH 6 is inadmissible on the grounds that it is undated and could have been made during the pendency of this suit which is contrary to Section 83 of the Evidence Act. Citing Visinani v. Brahams & Anor (2015) LPELR-40405.
Claimant further argued that whilst present at the meeting where the reduction of salary was imposed, he never consented to the reduction as it was a unilateral and arbitrary decision by the chairman of the Defendant. That Exhibit AA7 (claimant’s pay-slips) shows that N45,000 was deducted from the Claimant’s salary for a period of 9 months where a total of N405,000 was deducted during the period.
It is counsel’s submission on his entitlement to general damages that it does not need to be specifically pleaded and strictly proved as it is the discretion of the Court to award general damages. Citing Greif (V.L.) Containers Plc v. O.P. & Industry Ltd (2015) 8 NWLR (pt. 1461) 260 at 280. It was the further submission of counsel that there is no doubt that the Claimant has suffered untold hardship by the unlawful suspension without pay imposed on him by the Defendant. That he has incurred legal cost in the prosecution of this suit as he paid the sum of N350,000 to his Solicitors.
OPINION OF THE COURT
I have carefully considered the pleadings and evidence as presented by the parties. Having also considered the submissions of the respective counsel for the parties and the issues raised, I note that the Claimant has raised two issues for determination but I will take and adopt the issue submitted by the Defendant as it is broader and all encompassing. The issue is;
"Whether having regards to the evidence led at trial, the Claimant has made out a case to be entitled to the reliefs sought in this suit against the Defendant?"
The Claimant's grievance is that he was given a query by the Defendant which he answered and when the Defendant felt dissatisfied, it gave him a strong warning letter and subsequently a letter of indefinite suspension with out pay. That his salary was deducted by the Defendant for some certain months without his consent and the Defendant also failed to remit his pension contributions to his Retirement Savings Account.
Let me quickly address the issue of failure to remit the Claimant's pension contributions, the Claimant's prayer is to direct the Defendant to pay his statutory pension contributions for the month of December 2014 and from the period between September 2015, to August 2019 and the outstanding pension contributions which the Defendant failed to remit for the period between January 2015 to August 2015 into the Claimant’s Retirement Savings Account.
I wish to take note that the Defendant in paragraph 10 of its Statement of defence has admitted paragraph 12 of the Claimant's Statement of facts that it did not remit his pension contributions but stated that it is still in the process of computing the Claimant’s outstanding pension contribution for onward remittance to the Claimant’s Stanbic IBTC Retirement Savings Account.
It is the law that where a fact in the statement of fact is admitted in the statement of defence either because it is expressly or impliedly admitted, it ceases to be in controversy between the parties and no evidence is required to prove such fact. In other words, there is no dispute on a fact that is admitted. See Onobruchere & Anor V Esegine(1986) 2 SC 385, Malik V Kaduru Furniture & Carpets Limited (2016) LPELR-41308(CA). See also section 20 of the Evidence Act.
Therefore, in light of the admission of the Defendant in its Statement of defence that it did not remit the Claimant's pension contributions, relief 12 of the Statement of facts ought to be granted and I so order to the extent that the Claimant under cross-examination admitted that the Defendant did not deduct pension contribution from his salary from September, 2015 to August, 2019.
Claimant in his relief 2 has again asked for a declaration that the deduction of his salary by the Defendant was unlawful. The Defendant in its defence contended that the deduction was with the consent of the Claimant. It tendered Extracts of minutes of various meetings (Exhibit OH6) to show that the deduction was with the consent of the Claimant. I wish to state that extracts of meetings that do not have the signature of the Claimant cannot be said to represent the opinion and stand of the Claimant with regards to what had transpired at the said meetings. Exhibit OH6 does not indicate that there was consensus of all those that have attended the meeting about the things that were discussed at the meeting. I think there should be an express consent of the Claimant not just to assume that there was consent because the Claimant was present at the meeting and did not object. See section 5 of the Labor Act which states as follows:-
"(1) Except where it is expressly permitted by this Act or any other law, no employer shall make any deduction or make any agreement or contract with a worker for any deduction from the wages to be paid by the employer to the worker, or for any payment to the employer by the worker, for or in respect of any fines:
Provided that, with the prior consent in writing of an authorized labour officer, a reasonable deduction may be made in respect of injury or loss caused to the employer by the willful misconduct or neglect of the worker.
(2) An employer may with the consent of a worker make deductions from the wages of the worker and pay to the appropriate person any contributions to provident or pension funds or other schemes agreed to by the worker and approved by the State Authority.
(3) Upon the registration and recognition of any of the trade union specified in Part A of Schedule 3 to the Trade Unions Act, the employer shall-
(a) make deductions from the wages of all workers eligible to be members of the union for the purpose of paying contributions to the trade union so recognised; and
(b) pay any sum so deducted to the union, but a worker may contract out of the system, in writing, and where he has done so, no deductions shall be made from his wages in respect of contributions mentioned in paragraph (a) of this section.
(4) No deductions shall be made from the wages and salaries of persons who are eligible members of any of the trade unions specified in Part B of the Schedule 3 to the Trade Unions Act except the person concerned has accepted, in writing, to make voluntary contributions to the trade union.
(5) Deductions may be made from the wages of a worker in respect of overpayment of wages, but only in respect of any such overpayment made during the three months immediately preceding the month in which the overpayment was discovered.
(6) An employer shall, when making a payment to a trade union under paragraph (b) of subsection (3) of this section, include with such payment a list of the employees from whom deductions were made pursuant to paragraph (c) of the said subsection.
(7) Notwithstanding any other provision of this Act, the total amount of deductions that may be made from the wages of a worker in any one month shall not exceed one-third of the wages of the worker for that month."
See also the cases of Eze V Udeh(2017)LPELR - 42716(CA), Governing Council of NTI, Kaduna V NASU(2018)LPELR-44557(CA), Executive Chairman & Mgt of Benue Subeb V NASU(2021)LPELR - 55724(CA).
Following from the above, I will simply state that without the express consent of the Claimant, the Defendant cannot deduct his salary by relying on Exhibit OH6. Accordingly, Claimant's reliefs 2 and 10 are grantable and therefore succeed.
Claimant has also asked for a declaration that his indefinite suspension without pay is unlawful because it is not provided for in Employee Handbook (Exhibit AA3), however the Defendant contended that Exhibit OH8 is the latest and applicable version of the Employee Handbook. Article 61 of Exhibit OH8 referred to by the Defendant states as follows; "The following are the offences that may attract such disciplinary procedure in item(58/59) above: which can be subjected to a fine or suspension from work."
My understanding of Article 61 above is that, the word suspension does not mean indefinite suspension and it does not also mean suspension without pay either.
There are two types of suspension. Suspension pending enquiry and suspension as a punishment. The former is not a punishment per se, for if the employee is not found guilty, the suspension will be lifted and he will be netted to receive full wages for the period, as if he was never suspended. On the other hand, suspension imposed on the establishment of guilt is in the nature of punishment; it can have adverse impact on the career prospects of the employee within the organization. The point to underscore however is that suspension (whether pending enquiry or as a punishment) is not termination or dismissal: the contract of service remains subsisting and unbroken until it is lawfully brought to an end by either party. See AKINYANJU v UNILORIN [2005] 7 NWLR (PT. 923) 87, WALLWORK v FIELDING (1922) 2 KB PG. 46 and BIRD v. BRITISH CELANESE LTD (1945) 1 KB 336 (cited in LONGE v FBN supra) and MOBIL PRODUCING NIG. UNLTD & ANOR v UDO (2008) LPELR-8440(CA). CITY CENTRAL GROUP OF COMPANIES LTD V. EZE (2021) LPELR-55725(CA) (Pp. 38-39, Para D).
Generally, the law is that an employer has inherent powers to discipline its employee according to contract of employment where the conduct of the employee constitutes a misconduct or infraction. See the case of Arinze V. First Bank of Nigeria Ltd. (2000) NWLR (pt. 639) 78.
Similarly, an employer has a right to suspend any of his or its staff if there exists reasonable ground to do so. In Udemah V. Nigerian Coal Corporation (1991) 3 NWLR pt. 180 P. 477 @ 486, the Court of Appeal has held that the right to suspend an employee is available to an employer in order to effect proper investigation of allegations or during the process of a disciplinary action. See MIAPHEN V. UNIJOS CONSULTANCY LTD (2013) LPELR-21904(CA).
The right to suspend an employee when necessary, either as a punishment as in the instant case or to enable the investigation of an infraction, is an integral part of the employer's right to discipline a staff. But other than as aforesaid, in the regulation of an employment relationship, the power to suspend an employee is not an implied term in an ordinary contract between an employer and an employee. The Labour Act did not make a provision regarding suspension a mandatory requirement. See LONGE v FBN PLC, CITY CENTRAL GROUP OF COMPANIES LTD V. EZE (2021) LPELR-55725(CA).
In suspending an employee for the purpose of investigation or disciplinary action, the employer must comply with any existing regulation governing procedure. But such power can only be the creation of either a statute governing the body or of an express term in the contract itself. Therefore, where a contract of employment is not one with statutory flavour, for suspension to be validly made it must be so provided in the employment contract or in the Handbook regulating the terms of the employment. See Globe Motors Holding (Nig) Ltd V Oyewole(2022)LPELR - 56856(CA), Elizabeth V Ondo JSC(2021)LPELR-55177(CA).
Since suspension is not a termination of the employment contract nor a dismissal of the employee, the implication is that the employee is still in continuous employment of the employer until he is recalled or formally terminated or dismissed. Pending his recall or dismissal, a suspended employee is entitled to his wages or salary during the period of suspension, unless the terms of the contract of employment or the letter of suspension itself is specific that the suspended employer will not be paid salaries during the period of suspension. In the instant case, both the Employee Handbooks(Exhibits AA3 and OH8) did not state that an employee can be suspended indefinitely and will not be paid salaries. Claimant's letter of employment, (Exhibit AA1) did not also contain any terms with respect to his suspension without pay.
Where a suspension did not indicate that the suspended employer will not be paid salary or will be on half pay, the suspended employer is entitled to his emoluments during the period of the suspension. It is instructive to state that the basic and most important right of an employee is the right to his wages, and an employer is obligated to pay wages to an employee during the period of suspension as his wages cannot be affected by indefinite suspension. See Globe Motors Holding (Nig) Ltd V Oyewole(2022)LPELR - 56856(CA).
Given that the right to suspend an employee is not an implied term of an employment contact at common law, then it would appear that placing the Claimant on indefinite suspension without pay the manner the Defendant did in Exhibit AA5 in the absence of any such express provision in Exhibits AA3 and OH8 is unlawful. The Defendant should have simply terminated the appointment of the Claimant at the very time it felt dissatisfied with his response to the query, but it just went ahead and unnecessarily issue the Claimant an indefinite suspension without pay which is not provided for in each of the Employees' Handbook presented by the parties.
Considering the above therefore, reliefs 1,3, and 4 of the Claimant succeed.
I need to observe that the Claimant has tendered his termination letter (Exhibit AA10) which is dated 13/3/2020. It appears to be a document issued by the Defendant pending proceedings which is rendered inadmissible by section 83(3) of the Evidence Act.
The Claimant has tried to argue in his written address that he received Exhibit AA10 on 16/7/2020 and so his termination will take effect from that time. I will without any hesitation disregard that contention because it was not pleaded. Suffice it to say that Counsel's submission cannot take the place of evidence. Exhibit AA10 being a document not pleaded and made during the pendency of proceedings is also expunged.
For the Claimant's reliefs 6, 7, 8, 9 and 13. In my view, there is no credible evidence in support of the said reliefs. They therefore fail and are declined.
In view of all the reasons stated above and the circumstances of this case, Claimant's case succeeds in part and for the avoidance of doubt, I make the following declarations and orders:-
1. A declaration that the indefinite suspension of the Claimant by the Defendant without pay is unlawful, being not provided for in the Contract of Employment between the parties.
2. A declaration that the willful deduction of the sum of N45,000.00 (Forty-Five Thousand Naira) from the salary of the Claimant for the period from September, 2015 to May 2016 respectively by the Defendant without the Claimant’s prior and express consent is unlawful.
3. The Defendant shall pay the Claimant the sum of N405,000.00 (Four Hundred and Five Thousand Naira) being the total sum illegally deducted from the Claimant’s salary without his onsent, from September 2015, to May 2016 at the rate of N45,000.00 (Forty-Five Thousand Naira) per month.
4. The Defendant shall also pay the Claimant the sum of N79, 677.42 (Seventy-Nine Thousand Six Hundred and Seventy-Seven Naira Forty-Two Kobo) being the Claimant’s pro-rated salary for the remainder part of the month of August, 2019.
5. The Defendant shall further pay the Claimant the sum of N753,563.16 (Seventy Hundred and Fifty-Three Thousand, Five Hundred and Sixty-Three Naira Sixteen Kobo) net of tax being the Claimant’s salary for the period of September to December 2019 at the rate of N190,000.00 (One Hundred and Ninety Thousand Naira) (less tax) per month.
5. The Claimant shall be paid his salary by the Defendant from the 1st of January, 2020 to 20th February, 2020 when the suit was filed.
6. The Defendant is directed to pay the Claimant’s statutory pension contributions for the month of December 2014 and its only 10% contribution from September 2015, to August 2019 and the outstanding pension contributions for the period between January, 2015 to August 2015 into the Claimant’s Stanbic IBTC Retirement Savings Account.
7. Claimant’s claims for bonus tied to the Defendant’s financial performance, a refrigerator, Christmas entitlement/bonus for the year 2019, N2,500.00 being the equivalent of the daily meal and 21% prejudgment interest are declined.
8. ₦100,000 cost is awarded in favor of the Claimant against the Defendant.
9. The Judgment sum shall attract 10% simple interest per annum until it is fully liquidated.
Judgment is entered accordingly.
HON. JUSTICE S.H. DANJIDDA
(JUDGE)
