IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE
Dated: 3rd May 2023 SUIT NO: NICN/ABJ/133/2016
Between:
Mr. Funmilayo David Omosule - Claimant
And
Oil and Gas Free Zone Authority - Defendant
Representation:
Dr. Tunji Abayomi, with him, Kelechi Uzoanya, E. O. Abayomi and O. Adesina for the Claimant
Michael Ajara, with him, Anita Izato for the Defendant
JUDGMENT
In a Complaint filed in this court on 18th April 2016, the Claimant sought the following reliefs against the defendant:
1. A Declaration that the letter No. FZA/P/088 dated April 18th 2011 issued to Olufunmilayo O. Funmi notifying him of the Board Resolution of the Defendant suspending him from work is not a letter addressed to the Claimant and or meant to suspend the Claimant from his appointment in the employment of the Defendant.
2. A Declaration that the purported suspension of the claimant from the employment of the Defendant vide letter Reference No. FZA/P/088 dated April 18th 2011 and addressed to Olufunmilayo O. Funmi is wrongful, oppressive, unjustifiable, null and void.
3. A Declaration that the Claimant’s name known to the Defendant upon employment which has not changed is Funmilayo David Omosule or for short Funmi Omosule.
4. A Declaration that the application and or continued application of the letter No. FZA/P/088 dated April 18th 2011 addressed to Olufunmilayo O. Funmi to purportedly suspend the Claimant from employment of the Defendant is oppressive, unjustifiable, null and void and of no effect whatsoever.
5. A Declaration that the stoppage of the Claimant’s salaries and allowances on the basis of the purported suspension letter addressed to Olufunmilayo O. Funmi dated April 18th 2011 since April 2011 till date is oppressive, unjustifiable, null and void and of no effect whatsoever.
6. A Mandatory Order setting aside the purported letter of suspension addressed to Olufunmilayo O. Funmi dated April 18th 2011 with which the Claimant was suspended from office and ordering immediate reinstatement of the Claimant to his employment.
7. A Mandatory Order of court requesting the Defendant to pay to the Claimant all the outstanding salaries and allowances due to him since April 2011 up to the time he is reinstated.
8. A Mandatory Order of court placing the Claimant on Grade Level 17 and or the position and grade level his mates who mere Managers like him in April 2011 are currently occupying in the employment of the Defendant.
9. Cost of the suit and legal fees.
CLAIMANT’S CASE
The Claimant testified in proof of these claims. His case is that by a letter dated 18th April 2008, he was employed by the defendant as Manager Administration on Salary GL 12/4 with effect from 1st January 2008. Upon his employment, he was posted to head the Abuja Office of the Defendant as Manager, Abuja Liaison Office. His employment letter made his employment subject to all the conditions of service contained in the Defendant’s General Administration Manual and other instructions that may be issued from time to time. His employment was confirmed after the probation period and that earned him a permanent employment status. At the time of his employment, during his employment and till now, his name is Funmilayo David Omosule. This is the name that is contained in all his academic credentials and in his official file with the Defendant. It is also the name with which the Defendant has addressed him except the suspension letter addressed to Olufunmilayo O. Funmi.
By a letter dated 8th December 2010, the Defendant requested him to provide original copies of all his credentials and certificates which he presented to the Defendant at point of entry. He recalls that at the point of entry into the employment of the Defendant, he presented originals of his certificates to the management of the Defendant for sighting and verification. Thereafter, he lost the originals of his certificates. Since another certificate could not be issued, he applied for Certified True Copies of his GCE certificate from the West African Examination Council [WAEC] and his degree certificate from Ekiti State University, Ado-Ekiti. He had to get the Certified True Copy of his degree certificate from Ekiti State University because as at 1990 when he graduated, the name of the university was Ondo State University but upon creation of Ekiti State, the name changed to University of Ado-Ekiti. He had his NYSC Assignment at Government Secondary School Anka, Sokoto State. Upon creation of Zamfara State in 1996, Anka was ceded to Zamfara State. While the claimant’s resume states that his NYSC service year was at Government Secondary School Anka, Zamfara State, his NYSC certificate bears NYSC Sokoto. When he got the Certified True Copies of his certificates, he forwarded them to the Defendant. All the Certified True Copies bore the names Omosule David Funmilayo.
By letter Reference No. FZA/P/008 dated April 18th 2011 addressed to Olufunmilayo O. Funmi titled notification of Board Resolution, the Board approved the suspension of the said Olufunmilayo O. Funmi pending the production/submission of his original certificates with effect from 20th April 2011. Although the letter was addressed to Olufunmilayo O. Funmi, it was however handed to him and he was instructed to comply with its content. By the letter, which was not addressed to him with his name known to the Defendant, the Defendant relieved him of his duties as Manager, Abuja Liaison Office and has refused to pay him his salaries and allowances since 20th April 2011. The defendant also denied him his promotion and other benefits since April 2011. When the letter addressed to Olufunmilayo O. Funmi was handed over to him, he wrote an internal memo dated 19th April 2011 to the MD/CEO of the Defendant to inform him that upon misplacing the originals of his certificates, he obtained and forwarded Certified True Copies of his certificates to the defendant. He did not receive any reply to his internal memo rather, the defendant insisted on enforcing the suspension letter addressed to Olufunmilayo O. Funmi against him. He also stated that those who are Managers like him as at April 2011 are now Assistant General Managers on grade level 16 and General Managers on Grade Level 17. He ought to be a General Manager on Grade Level 17 by now in view of his post qualification experience.
In his additional evidence, the Claimant said the directive to submit educational credentials for verification in December 2010 was for the purpose of presenting to the management of the Defendant original copies of the certificates/credentials presented at the point of entry into the employment. The verification exercise was essentially for the purpose of senior staff promotion. He did not refuse to make available his educational certificates for verification. He forwarded CTCs of his educational certificates as he has misplaced the originals. On 19th April 2011, he forwarded the original CTCs of his certificates to the Defendant for sighting. He has never been known or addressed as Olufunmilayo O. Funmi. His name has always been Funmilayo David Omosule and Funmi Omosule for short. The letter of 18th April 2011 delivered to him could not be meant for him as the name contained therein is not his name. The letter cannot justify the stoppage of his salary and other entitlements. The suspension and stoppage of his salary included his transport allowance, rent subsidy, meal subsidy, domestic staff allowance, annual leave allowance. Although the Defendant has the right to suspend or terminate the employment of any employee, the termination or suspension must be according to law and relate to staff who is in the employment. His employment was not properly suspended or terminated, he remains an employee of the Defendant and he is entitled to receive his salaries and other entitlements. Despite presenting the original CTCs of his credentials to the Defendant, the Defendant refused to lift his suspension or recall him to duty since 20th April 2011.
The Claimant tendered 4 documents in evidence. They are marked Exhibits A, B, C and D. In cross examination, the Claimant identified some documents and they were tendered in evidence through him. The documents are Exhibits E, F1, F2, G, H, J and J1. The Claimant further stated in cross examination that in Exhibit A, he was requested to provide original copies of his credentials. Exhibit A forms part of the instructions he referred to in paragraph 6 of his deposition and there was a stated time limit within which he was to carry out the instruction in Exhibit A. He carried out the instruction. When he was employed in 2008, his original credentials were verified and certified okay. On receipt of Exhibit A, he went to Portharcourt but he was asked to return to Abuja. When he got back to Abuja, he went to his house to search for the originals but did not find them. He went to police station and court and he got a police report and an affidavit which he gave to Elder John Abe who put them in his file in his presence. When the committee came to Abuja, he was asked to get Certified True Copies of his degree certificate and GCE O’level certificate. He travelled to the schools and obtained Certified True Copies. He then wrote a memo to the Acting Head of Admin and forwarded Certified True Copies of degree certificate and GCE O’level certificate. He got police report and affidavit of loss which are in his file but they are not before this court. The committee came to Abuja and he was verified in Abuja. He submitted his certificates via Exhibit B dated 7th April 2011 and it was in compliance with the directive of the committee. The committee did not come to Abuja on the dates in Exhibit A. At the point of entry in 2008, his certificates were verified. Originals were sighted and it was written on his file copies “original sighted”. Having served out his probationary period, he is deemed to have been confirmed. No staff is given confirmation letter. On 1st December 2021, he turned in his retirement letter but the Defendant turned him down.
DEFENCE
The Defendant filed an amended statement of defence on 18th July 2022 and called one witness in defence of the suit of the Claimant. DW1 is one NGOFA ALENJU, the General Manager, Administration, of the Defendant. In his evidence, DW1 said the Claimant is bound to comply with all provisions of the Defendant’s Administration and Financial Manual and other regulations and instructions given by the Defendant. The confirmation of the Claimant’s employment was subject to receipt of satisfactory report from his last employer or school but the Defendant did not receive such report from the Claimant’s employer or school. The Claimant refused to make available his educational certificates for verification as requested by the Defendant in the letter dated 3rd December 2010 until the period expired. Apart from confirmation of appointment, the purpose of verification exercise was to determine the proper placement of staff in the employment.
DW1 stated further that the Claimant’s names Omosule David Funmilayo, Funmi Omosule, Omosule F. David or Olufunmilayo O. Funmi have been used interchangeably by both the Claimant and the Defendant at different times and the Claimant never complained. In the Claimant’s internal memo dated 19th April 2011, he responded to the letter of suspension without complaining of his name wrongly used. The Claimant did not present his original certificates to the Defendant at the point of being engaged by the Defendant but he presented only photocopies of some of the certificates. The Defendant did not request for originals of the Claimant’s certificates at the point of employment but at the point of confirmation. The Claimant at no time informed the Defendant of the loss of his educational credentials and he did not inform the defendant of his application for CTCs of his credentials. The Claimant submitted photocopies of his certificates after the period required for submission and in some of the photocopies, the names therein are either Omosule David Funmilayo or Omosule F. David. When the Claimant failed to submit originals or the CTC of his educational certificates, the Defendant wrote to all the schools the Claimant claimed to have attended but no response or confirmation was received from the schools. The Defendant was compelled to write the letter of 18th April 2011 suspending the Claimant because the Claimant refused to comply with the Defendant’s letter of 3rd December 2010 and other subsequent notices. The letter of suspension was issued to the Claimant 4 months after the verification exercise was concluded.
DW1 further testified that the letter dated 18th April 2011 with reference no. FZA/P/008 was meant for the Claimant. The letter was delivered to him, he received it without complaining and he responded to it in his internal memo dated 19th April 2011. The Claimant’s salary has not been paid because his employment with the Defendant was suspended. The Defendant has the right to suspend or terminate the Claimant’s employment where he fails to comply with instructions given to him or fails to comply with provisions of the Rules and Regulations contained in the Defendant’s Administration and Financial Manual. The Claimant was not the only staff that was suspended. Some later presented their original certificates and they resumed duty with the Defendant. The Claimant refused to present his original certificates or CTC; instead, he submitted uncertified statement of result from a secondary school without any explanation about the rest of his credentials, which made the Defendant believe the Claimant does not possess the requisite qualifications claimed by him. The Claimant’s employment was not confirmed and he is, as a result, not entitled to promotion or allowances.
Ten documents were admitted in evidence from DW1 and they have been marked Exhibits K, L, M, O, P, Q1, Q2, R and S. In cross examination by counsel for the Claimant, DW1 further stated that the Claimant was suspended on 18th April 2011 but by Exhibit L, the suspension took effect from 20th April 2011. His suspension was as a result of his failure to submit his credentials. The Claimant submitted photocopies at the point of entry. By Exhibit K, he was to produce originals for purposes of authentication. The witness said he did not see Exhibit M and he is not aware of any response to Exhibit M. The Claimant was in pensionable category and was a pensionable staff. Not all those who failed to present their certificates were suspended at the same time. They were given extensions. The duration stated in Exhibit K was later extended.
Parties adopted their respective Final Written Addresses on the 27th day of February 2023. I have read the various Final Written Addresses of counsels as well as the Defendant’s Reply on Points of Law. I do not see any reason to rehash their contents here. However, arguments proffered by learned counsels in their respective written addresses were duly considered and evaluated. Reference will be made to them as it becomes necessary in the course of this judgment.
COURT DECISION
The cause of action of the Claimant in this case is his suspension from the employment of the Defendant vide the letter with reference No. FZA/P/088 dated April 18th 2011 and addressed to Olufunmilayo O. Funmi. The Claimant’s principal complaint in this suit is that the letter was not addressed to him and he cannot be suspended through a letter not addressed to him. This is the area the Claimant anchored his claims in reliefs 1, 2 and 3.
In the evidence of the Claimant, he said that his name at the time of his employment, during his employment and till now is Funmilayo David Omosule and this is the name that is contained in all his academic credentials and in his official file with the Defendant. It is also the name with which the Defendant has addressed him. However, a letter dated April 18th 2011 with Reference No. FZA/P/008 and addressed to Olufunmilayo O. Funmi, was handed to him and he was instructed to comply with its content. The content of the letter is that the Board approved the suspension of the said Olufunmilayo O. Funmi with effect from 20th April 2011 pending the production/submission of his original certificates. According to the Claimant, by the said letter, which was not addressed to him, he was suspended from duties as Manager, Abuja Liaison Office. The Claimant added that when the letter addressed to Olufunmilayo O. Funmi was handed over to him, he wrote an internal memo dated 19th April 2011 to the MD/CEO of the Defendant to inform him that upon misplacing the originals of his certificates, he obtained and forwarded CTCs of his certificates to the Defendant.
In response to the Claimant’s case with respect to the issue of the suspension letter not addressed to him, DW1 stated in his evidence that names, which have been used interchangeably by both the Claimant and the Defendant at different times are Omosule David Funmilayo, Funmi Omosule, Omosule F. David or Olufunmilayo O. Funmi. The Claimant never complained about the use of these names. The letter dated 18th April 2011 with Reference No. FZA/P/008 was meant for the Claimant. The letter was delivered to him, he received it without complaining and he responded to it in his internal memo dated 19th April 2011. In the Claimant’s internal memo wherein he responded to the letter of suspension, he did not complain of his name being wrongly used.
The suspension letter in contention, Exhibit C, was addressed as follows:
“April 18, 2011
Oluwafunmilayo O. Funmi,
Oil & Gas Free Zone Authority,
Onne,
Rivers State.
Dear Mr. Funmi
NOTIFICATION OF BOARD RESOLUTION”
The name mentioned in the address or the addressee is Oluwafunmilayo O. Funmi. Then, under the address, it indicated that the person the content of the letter is referring is Mr. Funmi. The Claimant said his name known to the Defendant is Funmilayo David Omosule or Funmi Omosule but the Defendant said the Claimant has variously been addressed as Omosule David Funmilayo or Funmi Omosule or Omosule F. David or Olufunmilayo O. Funmi.
In order to be sure of the name the Claimant is known or addressed in the employment, I need to examine the documents tendered in evidence in this case to see the name by which the Claimant was known or addressed in the employment. Exhibit H is the Claimant’s employment letter. It was addressed to Funmi Omosule. Exhibit A is the notice given by the Defendant to the Claimant for the verification exercise. The Claimant was addressed as Funmi Omosule. Exhibit B is the Claimant’s internal memo to the Defendant dated 7th April 2011. He wrote his name as Funmi Omosule. Exhibit D is also an internal memo by the Claimant dated 19th April 2011. He wrote his name as Funmi Omosule. After the suspension of the Claimant, there were letters exchanged between the Claimant and the Defendant. These are Exhibits J and J1 dated 1st December 2021 and 13th December 2021 respectively. The name of the Claimant in these letters is Funmilayo Omosule. From these documents presented before me, I find that the name of the Claimant or how the Claimant was often addressed in the employment is either Funmi Omosule or Funmilayo Omosule. Without any doubt, the Claimant is known as and addressed as Funmi Omosule or Funmilayo Omosule in the employment.
Although the Defendant said one of the names the Claimant had been addressed is Olufunmilayo O. Funmi, it did not establish the averment. The Defendant did not produce any document made prior to the letter suspending the Claimant to show that the Claimant had been addressed as Olufunmilayo O. Funmi prior to the date of the letter of suspension. The Defendant is unable to satisfy me that the Claimant was at any time known as or addressed as Olufunmilayo O. Funmi.
Now, the letter which suspended the Claimant was addressed to Olufunmilayo O. Funmi. This is the reason the Claimant contended that it was Olufunmilayo O. Funmi that was suspended by the letter and not him. The critical issue to consider at this point is whether the fact that the letter was addressed to “Olufunmilayo O. Funmi” means that the letter was not meant for the Claimant. This issue arose from the fact that the letter was delivered to the Claimant, he received it, responded to it and complied with its content before filing this suit. It was on this basis the Defendant averred that the letter was meant for the Claimant and he responded to it in his internal memo dated 19th April 2011 without complaining of his name being wrongly used.
Although the name mentioned above the address is Olufunmilayo O. Funmi, the letter also shows that its content was meant for one Mr. Funmi. Funmi is part of the name of the Claimant. When the letter was delivered to the Claimant, he received it without complaining or returning it on the ground that it was not addressed to him. He was also familiar with the content of the letter such that he knows what to say in response to the letter. Exhibit D is the internal memo written by the Claimant to the MD/CEO of the Defendant dated 19th April 2011 in response to the suspension letter. In the second paragraph of the memo, the Claimant wrote: “I attach herewith copy of letter of Board resolution suspending me pending the production/submission of my original certificates.” From the memo of the Claimant, he is aware that the letter dated 18th April 2011 with reference no. FZA/P/008 was meant for him and he knows that he was the one suspended in the letter pending the production/submission of his original certificates. I cannot see anywhere in the memo of the Claimant where he complained that the letter was not meant for him or that it was wrongly addressed or delivered to him. The Claimant did not raise the issue of the name the letter was addressed to until this suit.
In my view, I do not see any strong point in the fact that the name the letter was addressed to was not the Claimant’s known name. It is not in doubt that the letter was meant for the Claimant and it did mention Mr. Funmi, one of the names of the Claimant, as the person the content was meant for. Clearly, despite the name Olufunmilayo O. Funmi written on the letter, it cannot be doubted that the letter was meant for the Claimant.
In Exhibit A, dated 3rd December 2010, the Claimant was requested to present original copies of his certificates/credentials for sighting in a verification exercise. The Claimant confirmed in his evidence that he did not present the originals of his certificate for verification. He said it was after he got the verification notice he discovered the originals of his certificates were missing. Thus, he did not deny the fact that he did not present the original copies of his certificates as requested up to the date of Exhibit C dated 18th April 2011. In Exhibit C, the Claimant was suspended by the Defendant until he produces or submits his original certificates.
What the Defendant requested for sighting in the verification exercise was the Claimant’s original certificates. Therefore, when the Claimant could not present the original copies of his certificates as requested, the Defendant is entitled to suspend the Claimant pending when the Claimant does the needful. The Claimant claimed that he eventually presented CTCs of his certificates to the Defendant vide Exhibit B. The Exhibit is a memo by the Claimant to the Ag. Head of Admin dated 7th April 2011 purporting to forward CTCs of his GCE and Degree certificate. However, copies of the CTC of the said certificates have not been attached to the exhibit and the Claimant did not tender copies of the CTCs separately in evidence as to believe he actually obtained or submitted the CTCs to the Defendant.
Obviously, the Claimant did not present original copies of his certificates to the Defendant for verification in the December 2010 exercise and he has not convinced me that he has CTCs of his certificates or presented them to the Defendant. Therefore, I have no reason to fault his suspension by the Defendant for failure to present original copies of his certificates to the Defendant for verification. I also do not see the reason that the suspension letter was not addressed in his name as a good ground to declare his suspension wrongful.
Let me observe that the facts and the evidence in this case show that the suspension of the Claimant vide Exhibit C with effect from 20th April 2011 subsisted till the time the Claimant filed this suit in this court on 18th April 2016. There is no indication that any other action was taken by the Defendant with respect to the Claimant’s employment up till the time this suit was filed or thereafter. I have examined the pleadings of the parties and the evidence adduced by the witnesses but I did not find where any of them said the employment of the Claimant was at any time terminated since April 2011. In fact, the Claimant stated in his additional evidence that his employment was not terminated and that he remains an employee of the Defendant. Although the Defendant pleaded that the Defendant has the right to suspend or terminate the Claimant’s employment, the Defendant did not show that the Claimant’s employment has been terminated at any time from April 2011. From the pleaded facts and the evidence adduced, the Claimant was placed on suspension and he is still on suspension till date.
The Claimant stated in his evidence that when he was suspended vide Exhibit C, the Defendant also stopped paying him his salaries and allowances since 20th April 2011. In reliefs 5 and 7, the Claimant sought a declaration that the stoppage of his salaries and allowances since April 2011 till date is oppressive, unjustifiable, null and void and of no effect whatsoever and an order to the Defendant to pay all outstanding salaries and allowances due to him since April 2011 up to the time he is reinstated. DW1 explained that the Claimant’s salary has not been paid because his employment was suspended. DW1 further stated that the Defendant has the right to suspend or terminate the Claimant’s employment where the Claimant fails to comply with instructions given to him or fails to comply with provisions of the Rules and Regulations contained in the Defendant’s Administration and Financial Manual.
It is not in dispute that that the Claimant was suspended from duty with effect from 20th April 2011. It is also not in dispute that his salaries and allowances were also stopped from the date of the suspension. The Defendant’s explanation to the stoppage of the salaries of the Claimant is that it was as a result of the suspension. In a contract of employment, there is no implied contractual right on the part of the employer to suspend an employee without pay on disciplinary grounds. For there to be no pay during suspension, it must be expressly stated in the contract of service between the parties. In MOBIL PRODUCING NIG. UNLTD vs. UDO (2009) All FWLR (Pt. 482) 1171 at Pg. 1224, the Court of Appeal held that during suspension, the employment continues to subsist and the employee is entitled to his salaries during the period except there is a condition of service which permits the employer to stay payment of salary during period of suspension. That is to say, where the contract of service permits the employer to withhold payment of salaries during suspension, the employee will not be entitled to salaries within the period of suspension. Again, it is trite that a servant whose employment has been terminated cannot claim for salary for periods he was no longer in the employment. See OBOT vs. CBN (1993) 1 NWLR (Pt. 310) 140; SPRING BANK vs. BABATUNDE (2012) All FWLR (Pt. 609) 1191 at 1205. The effect of these authorities is that a servant whose employment has not been terminated but merely on suspension is entitled to salary during the period of suspension except the master is permitted in the condition of service to suspend without pay.
Now that the Claimant has sought payment of his salaries accruing to him during the period of suspension, it is the duty of the Defendant to justify the stoppage of the Claimant’s salary during suspension. The burden is on the Defendant to plead and prove what entitled it to suspend the Claimant without pay. In this case, the Defendant did not plead any fact to the effect that the suspension of the Claimant without pay was in accordance with the condition of service. DW1 did not give evidence to that extent or point this court to any term of the employment or condition of service which permitted the Defendant to suspend the Claimant without payment of his salaries. Although DW1 tendered the Claimant’s employment letter and Defendant’s Administrative & Financial Manual in evidence, which is Exhibits H and S, it was not mentioned in the statement of defence or in the evidence of DW1 whether the documents contain any terms which permitted the Defendant to suspend without pay. In other words, no fact was pleaded or evidence given to link the Claimant’s suspension without pay to the terms of the employment letter and the Manual. It is not the duty of this court to conduct investigation into the contents of the letter or the Manual to find whether it permitted the Defendant to suspend without pay. Yet, in order to resolve all issues conclusively, I took time to read through the content of the letter and the Manual. I find that they do not contain any provision on suspension not to mention suspension without pay.
The Defendant has not shown that the stoppage of the Claimant’s salary during suspension was permitted by the condition of service. The result is that there is no evidence before this court to show that the Defendant has the right in the contract to suspend the Claimant without pay. Consequently, the Defendant failed to justify the stoppage of the Claimant’s salary during suspension. The Defendant clearly had no justification to withhold or stop the Claimant’s salaries since 20th April 2011. The stoppage of the Claimant’s salary is therefore wrongful. The Claimant is entitled to be paid his salaries during the period of suspension.
In relief 4, the Claimant sought a declaration that the application and/or continued application of the letter addressed to Olufunmilayo O. Funmi to suspend him is oppressive, unjustifiable, null and void and of no effect whatsoever. I have earlier resolved that the letter was meant for the Claimant. Therefore, the aspect of this relief relating to the application of the letter to suspend him has been resolved. The other aspect of the relief to be considered is the continued application of the letter to suspend him since April 2011.
The Claimant has been on suspension since 20th April 2011. I also find that his employment has not been terminated. Although the suspension letter contains that the failure of the Claimant to produce his original certificates within 2 months of the letter will result to the termination of his employment, the Defendant did not show that it terminated the Claimant’s employment after the time limit. A suspension is not and cannot amount to termination of employment. In LONGE vs. FIRST BANK P.L.C (2010) LER SC 116/2007 at Pg. 52, the Supreme Court held-
“Suspension is neither a termination of contract of employment nor a dismissal of employee. It operates to suspend the contract rather than terminate the contractual obligation of the parties to each other”
Also, in MOBIL PRODUCING NIG. UNLTD vs. UDO [2009] All FWLR [Pt. 482] 1171 at 1224, the court defined suspension thus-
“Blacks’ Law Dictionary, 6th Edition at page 1447 defines it as “temporary withdrawal or cessation from employment as distinguished from permanent severance that is accompanied by removal”. Also in AKINYANJU v. UNIILORIN (2005) 7 NWLR (Pt.923) 87, suspension is said to mean “to defer, lay aside, or hold in abeyance.” it also means “to halt midway but certainly not to bring to an end or terminate.”
Also in UNIVERSITY OF CALABAR V. ESIAGA [1999] 4 NWLR [PT. 502] 719 AT 723, Suspension was defined to mean-
“A temporary privation or deprivation, cessation or stoppage of or from privileges and rights of a person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling for a fixed or terminal period or indefinitely”.
In view of these authorities, it is clear that suspension does not amount to termination of employment. An employee on suspension is nonetheless an employee until terminated. The Claimant therefore remained an employee of the Defendant all the while he was on suspension.
The Claimant has been on suspension for over a period of over 12 years. He was neither recalled nor terminated. The period is rather too long to keep the Claimant on suspension. The Defendant kept the Claimant on suspension for 12 years without taking a decision on the employment of the Claimant, thereby putting the Claimant on apprehension of his fate and status of his employment. He lives day by day in anticipation, not knowing whether he will be recalled or will be terminated. I hold that the continued suspension of the Claimant from April 2011 till date is wrongful, oppressive, unjust and unfair. For this reason, I will set aside the suspension of the Claimant and order the Defendant to recall the Claimant with effect from the date of this judgment.
I am aware that the issue of the verification of the Claimant’s original certificates, for which he was suspended, has not been cleared. The issue is one the Defendant is entitled to conclude and take a definite decision with respect to the employment of the Claimant; but to keep the Claimant on suspension for 12 years is what this court will not condone or allow to continue.
The Claimant also sought an order placing him on Grade Level 17 or in the position and grade level his mates who mere Managers like him in April 2011 are currently occupying in the employment of the Defendant. In other words, the Claimant wants this court to order the Defendant to promote him to the position he ought to be in the employment as at today. This is in relief 8. From the evidence of the parties and in Exhibits A and C, the Defendant embarked on certificate verification exercise in December 2010 and the Claimant was required to present original copies of all his credentials for sighting. The Claimant, as stated in Exhibit C, did not present originals of his certificates for verification and he was consequently suspended pending the time he presents his original certificates. In his evidence, the Claimant said the verification exercise was essentially for the purpose of senior staff promotion. DW1 too confirmed that verification of credentials of staff is for purpose of promotion, among others. It is therefore not in dispute that the verification of credentials embarked on by the Defendant in December 2010 was to verify original credentials of its employees for the purpose of promotion.
From the facts, the Claimant did not present his original certificates for verification, because according to him, they were lost, and the Defendant has not verified or certified him cleared on the CTCs he allegedly submitted. It was for the reason that he failed to present originals of his certificates he was suspended. It is therefore clear to me that the promotion of the Claimant depended on the verification of his credentials which has not been done till now. The issue with the verification of the Claimant’s credentials is still unresolved by the Defendant. In my view, to order the Defendant to promote the Claimant will mean that this court has verified the Claimant’s certificates and certified him cleared for promotion. That duty is exclusively for the Defendant and not the duty of this court. This is in addition to the fact that the Claimant did not present any copy of the said CTCs of his certificates in evidence for the court to see that he indeed obtained CTCs of the certificates. In as much as the issue of the verification of the Claimant’s certificates has not been resolved by the Defendant, I cannot grant the Claimant’s claim seeking to be promoted.
In the result of all I have said so far, I find that the Claimant did not prove reliefs 1, 2, 3 and 8. These claims are dismissed. Reliefs 4, 5, 6 and 7 sought by the Claimant succeed and they are accordingly granted in the following terms:
1. It is declared that the continued application of the letter No. FZA/P/088 dated April 18th 2011 to suspend the Claimant is oppressive, unjustifiable, null and void and of no effect..
2. It is declared that the stoppage of the Claimant’s salaries and allowances on the basis of the suspension letter dated April 18th 2011 since April 2011 till date is oppressive, unjustifiable, null and void and of no effect.
3. An order is made setting aside the letter of suspension dated April 18th 2011 and the Defendant is ordered to immediately recall and reinstate the Claimant to his employment.
4. An order is made directing the Defendant to compute and pay to the Claimant all his outstanding salaries and allowances due to him from April 2011 up to the time he is reinstated.
5. Cost of N500,000 is awarded to the Claimant.
6. The orders hereby made must be complied with within 30 days from today.
Judgment is entered accordingly.
Hon. Justice O. Y. Anuwe
Judge