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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 16th February, 2015 Suit No. NIC/ABJ/266/2013 BETWEEN ABDULAZEEZ IBRAHIM CLAIAMNT AND ZENITH BANK PLC DEFENDANT REPRESENTATION Mohammed Lukman Esq for the Claimant. Dr. Soni Ajala with I. Ekene Esq and Obinna Egwu Esq for the Defendant. JUDGMENT By amended complaint dated 9th October, 2014 and filed on 24th October, 2014 the claimant claims against the defendant as follows:- a. A Declaration that the suspension of the claimant by the defendant is illegal, null and void. b. A Declaration that the termination of the claimant’s employment from the employ of the defendant is illegal and constitutes a wrongful termination of employment. c. An Order of court directing the defendant to pay to the claimant the sum of N30,666,666.00 (Thirty Million Six Hundred and Sixty-six Thousand Six Hundred and Sixty-six Naira) Only with interest at the prevailing bank rate being the Annual Cumulative Monthly Salary of the claimant from 6th August, 2010 till 18th March, 2013 when the claimant appointment was terminated. d. An Order of court directing the defendants to pay 21% interest on the above stated sum from the date of the claimant resignation till the date of Judgment and thereafter 15% interest on the Judgment sum from the date of Judgment till final settlement or liquidation of the said sum. e. The sum of N100,000.00 (One Hundred Thousand Naira) Only paid to his Solicitors for Letters. f. The sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) Only being cost of this suit. g. The sum of N958,834.00 (Nine Hundred and Fifty-eight Thousand Eight Hundred and Thirty-four Naira) Only being the claimant’s monthly salary as damages. And for such other or further orders that this Honourable Court may deem fit to make in this circumstance of this suit. The complaint is accompanied with an amended statement of fact, witness statement on Oath, list of witnesses and list of documents to be relied upon at the trial. The Memorandum of appearance dated 17th October, 2013 and filed on the 18th October, 2013 for the defendant. By a Motion on Notice dated 6th December, 2012 moved and granted the defendant statement of defence, witness statement on Oath, list of document to be relied upon and list of witnesses were deemed properly filed and served on 14th February, 2014. The matter went into trial, the claimant testified and tendered 14 Exhibits. Mr. Anthony Makwe, the Zonal Legal Officer testified for the defendant. At the conclusion of the trial parties were ordered to file and exchange their final written addresses. On the 12th of November, 2014, parties adopted their final addresses. The learned counsel for the defendant submitted a lone issue for the determination in this suit to wit:- Whether from the nature of pleadings of the claimant and evidence adduced in support thereto vis-à-vis the defence put forward by the defendant, the claimant has by credible discharged the burden of proof placed upon him to be entitled to the relief claimed. The learned counsel submitted that it is trite that he who asserts positive has the burden to prove same. That the position of law is aptly captured by the provision of Section 136 of Evidence Act 2011 which provide:- The burden of proof as to a particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other. The defendant relied on the decisions in the cases of Texaco Overseas (Nig) Pet Co UnLtd V Rangk Ltd (2009) All FWLR (Pt. 494) P. 1520 at Page 1535 and Mozie V Mbel Malu (2006) 27 NSCQR P. 425 at 474. To the defendant the claimant has not only failed to plead facts in support of his major relief, he altogether failed to place before the court any credible evidence in proof of same. The defendant went on to consider the major contention of the claimant in his pleading concerning his suspension reproduced below:- The claimant avers that prior to the time in which he was issued the letter of suspension and subsequent investigation by the defendant, he was not availed any opportunity to make a defence particularly as he was neither indicted on the said allegation as contained in the letter of suspension. The defendant reacted reproducing the content of Exhibit PW1 (sic) PW3 the Internal Memo of INDEFINITE SUSPENSION to wit:- We have received a report on a coordinated fraud scheme on Aso Savings and Loans Account domiciled in Garki Branch. Pending the conclusion of the investigation Management has directed that you proceed on indefinite suspension without pay effective August 9, 2010. During the period, you are to keep your phone lines open to easy accessibility. Please handover the Banks property in your possession to your Branch Head for onward transmission to Human Resources. SINNED The defendant submitted that no word, words or phrase contained in Exhibit PW1 (sic) PW3 reproduced above where the defendant accused nor indicted the claimant of any allegation or fraud. That similarly the claimant all through his oral testimony did not adduces any scintilla of evidence either written or oral where the defendant accused the claimant of fraud. The defendant further submitted that Exhibit PW1(sic) PW3 did not state that the claimant was suspended for fraudulent activity, it did not accuse the claimant of master – minding any fraud. That the wording of Exhibit PW1 (sic) PW3 was clear, simple and unambiguous. The defendant referred to paragraph 12 of the sworn statement on Oath of the claimant which stated thus:- …… the reason for my suspension was predicated on a report of coordinated fraud scheme on Aso Savings Bank Account domiciled in the defendant’s Garki Branch. Whereas, I was not informed of any wrong or involvement in the said letter. The defendant then further submitted that the defendant as a licensed financial Institution has a duty to investigate the fraud of N7Billion. The defendant and others staff were suspended at the time of suspension, the defendant was still undecided on persons that were culpable or otherwise in the coordinated fraud. That the period of suspension of the claimant was pending the conclusion of the investigation. The defendant submitted that the claimant contradicted himself when he said in his pleading in paragraph 8 of his statement of fact that he admitted he faced the disciplinary panel of the defendant and the same breath stated in paragraph 11 of this statement of fact that he was not avail any opportunity to make defence. He also referred the court to paragraphs 10 and 12 of the claimant’s written deposition. It is trite law that were there is a contradiction in the evidence of a party whether oral or documentary, and it is on material point, that party is not entitled to the believed and his case will likely be affected adversely. This is because the court will be left in a quandary which one to believe and which one to reject. It is also not entitled to pick and choose from the two, which one to be believed. See Nwosu V Imo State Environmental Commission (1986) 4 NWLR (Pt. 35) 348 and Onwuka V Ediala (1989) 1 NWLR (Pt. 96) 182. The defendant also contended that the claimant expended so much energy on Exhibit PW12 as could be gleaned from paragraph 18 of a statement of facts as sworn testimony on Oath respectively. The defendant further submitted that the Exhibit PW12 is questionable as it was authored by a total stranger the (Nigerian Police Force) to the contract of employment between the claimant and the defendant. To the defendant Exhibit PW12 is a worthless document that has no factual or legal influence to influence the discretion of the defendant to dispense with the service of the claimant at will. The counsel urged the court to note the conclusion in Exhibit PW12 read thus:- Consequently, there is no ground to initiate further legal proceedings against the said Ibrahim Abdulazeez . To the defendant the conclusion reached by the Nigerian Police Force as Exhibit PW12 is within the domain of the statutory duties of the Police. To the defendant Exhibit PW12 is not relevant nor material to the case at hand which is primarily that of an employee - employer relationship. The defendant further submitted that the testimony of DW1 written and oral was consistent, unimpeachable and uncontroverted all through the proceedings. That DW1 maintained under cross – examination that the defendant terminated the employment of the claimant because his services was no longer required. That since the claimant was on indefinite suspension without pay at the time of his appointment was terminated he was not qualified for payment of one month in lieu of notice as was stated in the contract of employment Exhibit DW1. The defendant further submitted that DW1 unequivocally stated that the claimant was at liberty to have resigned his appointment with the defendant during the period he was under suspension as there was no barrier for him so long as Exhibit PW3 merely asked the claimant to keep his phone lines open. The defendant also submitted that the law is settled that the motive or reason is immaterial when an employer decides to terminate a contract of employment of an employee. All that is required is that the suspension or termination is within the contemplation of the contract of employment and the authority of the employer. Relying on the case of Nitel Plc V Akwa (2006) 2 NWLR (Pt. 964) 417. The defendant then submitted that the claimant who is separately an appointee or employee of the defendant like any other member of staff of the defendant is an employee of the defendant and therefore liable to be disciplined if need be and suspended by the defendant to allow for thorough investigation of the reported fraud in excess of N7Billion. That in the event that the services of the claimant is no longer desired, required or necessary either during the period of suspension or upon conclusion of investigation as in the instant case, the defendant as the de facto and de jure employer of the claimant is at liberty to dispense with the services of the claimant or any other member of staff of the defendant. The defendant urged the court to so hold. Relying on the case of NEPA V Egboigbe (2009) 8 NWLR (Pt. 1142) 162. The defendant also asked the court to take judicial notice of similar exercise of authority in recent times affecting the helms man at the apex bank of the land who was suspended from office by his appointor to make room for investigation of reported incidence of compromised corporate good governance amongst others. The defendant contended that regarding the relief 2 of the claimant for payment of his purported cumulative salary from August 6, 2010 till March 18, 2013, on this the defendant referred to the Supreme Court case of Longe V FBN (Nig) Plc (2010) 6 NWLR (Pt. 1189) where it held:- Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee. To the defendant it accords common sense that the claimant having not rendered any service the defendant during the period he was on suspension cannot be heard to claim the wages for services he never rendered. The defendant further argued that the defendant power to suspend the claimant temporarily or indefinitely or invite claimant to appear before the disciplined committee not questionable. Similarly the defendant urged the court to discountenance the claimant’s claims No. 4 – 5 which are for payments made to the claimant’s solicitors lawyers in furtherance of the claimant’s constitutional right of seeking legal redress to be baseless and unconscionable. That the law is settled that damages which in fact exclude legal expenses incurred by parties are not awarded as a matter of course and thus it must be justified before it could be awarded. Citing a case of Adeniran V Alao (1992) 2 NWLR (Pt. 223) 272 where it was held:- Damages are a form of financial reward to a plaintiff who has suffered wrong caused or precipitated by the wrongful act or conduct of a defendant. Therefore where there is no wrong there cannot be damages. The defendant therefore submitted that claims 4 – 5 being an ancillary claims are declaratory in nature, with no credible evidence provided to proof them. The claim of N100,000.00 for letter writing by the claimant’s lawyer and N1,500,000.00 (One Million Five Hundred Thousand Naira) Only for the cost of initiating this suit was not proved by the claimant. There is no evidence how the claimant arrived at the sum. That Exhibits PW13 and PW13A respectively cannot substitute for such standard of proof required. They submitted further that the court frowns at such conduct by litigants and counsel as unethical and an affront to public policy for a litigant to attempt to pass on the burden of his legal contest to his opponent in the suit. The defendant finally submitted on the 5th claim that the claimant is not entitled to terminal benefit such as one month salary in lieu of notice as Exhibit PW10 letter of termination was served on the claimant when Exhibit PW3 was in force. The defendant urged the court to resolve the lone issue in favour of the defendant and to hold that the claimant claims failed. In arguing issue 1 the learned counsel to the claimant submitted on the issue of suspension stating that suspension is a disciplinary procedure adopted by an employer with a view to causing an investigation into an allegation against which the suspended employee is indicted in order to prevent unfettered interference with the cause of investigation. That in the instant case, the claimant was asked to proceed on an indefinite suspension vide an Internal memo dated 9th August, 2010 which was served on him. Two months after completion of the defendant’s investigation into the alleged coordinated fraud scheme on Aso Savings and Loans Plc in which the plaintiff was never indicted. To the claimant it is in evidence that Exhibit DW1 (Report of Disciplinary Committee) recommending the termination of the claimant’s employment is dated 14th June, 2010 whilst the suspension of the claimant took effect from the 6th August, 2010 at which time there exist no further investigation to be carried on or conducted by the defendant to justify the need for the suspension of the plaintiff relying on the provisions of Section 157 of the Evidence Act. To the claimant the procedure adopted by the defendant in suspending the claimant is wrong in law as the defendant cannot be said to have complied with the procedure and condition precedent within which the claimant may be suspended to allow for investigation. The claimant referred the court to the case of Baba V N.C.A. TC (1991) 5 NWLR (Pt. 192) 38 at 418 that the Supreme Court laid down the procedure an employer like the defendant shall follow or embark upon where a panel of Enquiry just as the Disciplinary Committee of the defendant makes out a case against an employee. According to the claimant Exhibit DW1 had already concluded the investigation of the defendant Disciplinary Committee and the prima – facie case made out against the claimant by the defendant as contained in Exhibit DW1 was not made known to the claimant before requesting him to proceed on indefinite suspension after the completion of its investigation. The claimant then submitted that Exhibit PW3 (INTERNAL MEMO OF INDIFINITE SUSPENSION) issued against the claimant is valid, the question that calls for scrutiny is that, has the defendant indicted the claimant in the said alleged coordinated fraud scheme on Aso Savings and Loans Plc with which the claimant is availed an opportunity to refute or debunk any case made out against him? He answered this in the Negative. On the claimant’s response on this issue claimant referred to the case of Yusuf V V.O.N. Ltd (1996) 7 NWLR (Pt. 463) where the court held in ratio 2 on suspension on an employment without pay held that:- In the present case, of the appellant was exonerated by the police, the basis of his suspension without pay no longer existed and he ought to be paid in FULL FOR THE PERIOD HE was placed on suspension. It is immaterial that the Respondent received from the Police rather late the Letter Exonerating the Applicant. Per Uwaifo JCA at Page 573 Paras d – f:- For clause 18 to apply in the circumstance of the present case, the plaintiff would have at least been accused of committing an offence which in the opinion of the Management amounts to serious misconduct. He could then be justifiable suspended without pay. That is what the contract of service as per Exhibit G stipulated between the parties. It is not open to the court to look elsewhere for the conditions of employment other than the contract of service. Claimant then referred to the case of International Drilling Co. Nig Ltd V Ajijala (1976) All NLR 117 at 130 per Obaseki JSC Para A:- Great injustice was done to the Appellant by the Respondent when the Company continued to suspend him even after he had been cleared by the Police. To insist as the court below did that clause 18 of the employee Handbook gives limitless power to the company to suspend the appellant indefinite is to read a meaning not intended and which cannot be found in any company engaged in legitimate business. The claimant then contended that the defendant reliance on DW1 and on the Employee Handbook in its pleading which said Employee Handbook was never tendered before this court to justify the power of indefinite suspension is a sheer fallacy and desirous to the defendant case because he who asserts must prove. That the defendant cannot rely on the Employee’s Handbook pleaded but not produced nor the Internal Policy of the defendant which is not contained in the defendant’s pleadings to justify the indefinite suspension of the plaintiff particularly 2 months after the completion its investigation and recommendation of the defendant’s Disciplinary Panel. That parties are bound by their pleadings and facts which are not pleaded goes to no issue and the court has a duty to expunge such fact even if given in evidence Abubakar V Wazeri (2008) All FWLR (Pt. 436) 2025. The claimant also refer to the argument of the defendant relying on Longe V First Bank Plc (2010) 6 NWLR (Pt. 1189) that an employee is not entitled to any benefit during the period suspension is misconceived and the case be distinguished with the cases of A.C. B. Ltd V Ufondu, Yusuf V V.O.N., Baba V N.C. ATC, and Onalaja V African Petroleum Ltd where the Supreme Court had to determine and inquire unto the validity and legality of the suspension of an employee by their employer which point was not considered in the case of Longe V First Bank Plc. That the condition precedent therefore for suspension of an employee has been clearly laid down in the case of Baba V N.C.ATC. But that the condition precedent has not been met or followed or abide with before the claimant in this suit was suspended after the completion of the defendant inquiry and investigation. The claimant urged the court to so hold. On the 2nd issue which whether or not the termination of the Plaintiffs employment by the defendant constitutes a breach of contract and same amounted to wrongful termination of employment with which the claimant is entitled to one month salary in lieu of notice and damages. On this issue the claimant contended that having established vide Exhibits PW1 & PW2 respectively that he is an employee of the defendant and the defendant having admitted same cannot be heard to complain or controvert its own admission that the claimant is not its employee. The claimant referred the court to Exhibit PW2 which states:- Please note that upon this confirmation you may resign your appointment with the Bank subject to giving one month notice in writing or payment of one month gross salary in lieu of notice. That where parties enter into a contract the court of law is required to interpret the contract according to the letters without looking elsewhere to impute terms and condition which parties never contemplated. Relying on the case of Strabag Construction (Nig.) Ltd V Adeyefa (Supra). That Exhibits PW1 & PW2 respectively only stipulated the length of notice reqired by the claimant to resign or terminate its appointment, the Exhibits are silent on the length of notice or payment required for the defendant (employer) to terminate the claimant’s employment. That when a situation like this ensues, it is paramount for the court to carefully and confidentially rely on common law provisions which requires that three months notice or three months salary in lieu of notice be furnished or given to an employee whose appointment may be terminated by employer at will. A.C.B. Ltd V Ufondu (Supra) and Kusamotu V WEMOBO Estate Ltd (1976) 11 SC 279. The learned counsel submitted that the claimant is not questioning the right and power of the defendant to determine his appointment at will for whether for good, bad or no reason at all, however, the contention of the claimant is that before the defendant could exercise such powers to terminate his appointment recourse had to be made to the spirit, content and extent provisions of service i.e. Exhibit PW1 and PW2 which the defendant ignored with reckless impunity. The learned counsel contended that the contract agreements between the claimant and the defendant in this case are Exhibit PW1 and Exhibit PW2. That the reliance of the defendant on the Internal Policy of the defendant as constituting an agreement with which the claimant is bound is an empty expedition to endless voyage of no discovery having failed to lead evidence, tender the document containing the Internal Policy or plead same in its pleading. That Exhibit DW1 tendered by the defendant showed clearly that investigation into the alleged coordinated fraud scheme was completed on the 14th June, 2014 recommendation the termination of the claimant’s appointment and not his indefinite suspension which came up on the 6th August, 2010, 2 months after the completion of investigation by the defendant. The counsel also said the defendant has admitted that in its witness statement on Oath and statement of claims and under cross-examination that no notice whatsoever was given to the claimant informing him of the termination of his appointment. He therefore, submitted that where parties as in the instant case reduced their terms and conditions of service into an agreement, the conditions must be observed before exercising the right of dismissal and the defendant failure to give notice before the termination of the claimant’s employment constitute wrongful termination of employment. That it is paramount that the defendant be held responsible to honour the terms of the contract of service between it and the claimant as provided under common law by paying the claimant 3 months salary in lieu of notice since the appointment was terminated without notice. Spring Bank Plc V Babatunde (2012) All FWLR (Pt. 609) 1191. That when an employer like the defendant unlawfully terminates the employment of the employee like the claimant for whatever reason, it is incumbent on the employer to pay to the employee damages, for breach of the contract of employment apart from what the employee is naturally entitled to earn pursuant to the terms and conditions of service between them and or where the provisions of common law is applicable. That it was out of place for the defendant to suggest or argue that in view the Supreme Court decision that the claimant is not entitled to damages. That the decision in Kabel Metal (Nig) Ltd V Ativieb (2002) 10 All FWLR has cleared the Air when the court held that:- In cases of employment governed by agreement of the parties and not by statute, the remedy of the person wrongfully dismissed is a claim for damages and no more. That in evaluating the damages the claimant shall be entitled to, the court shall take cognizance of the fact that the claimant needs to be put back into position in which he would have had the defendant complied with the terms and conditions required to terminate the claimant’s appointment. Strabag Construction (Nig) Ltd V Adeyefa (supra). The claimant submitted that the claimant is entitled to both the 3 months salary in lieu of notice as well as damages. The third relief is for payment for cost. In this respect the claimant argued that cost follows event. That claim is predicated on the reckless impunity of the defendant to give effect to the terms and conditions of the contract of employment between them which require the defendant to avail the claimant a minimum of 3 months notice under common law or payment of 3 months salary in lieu of notice. The claimant submitted that having established the refusal of the defendant to honour his civil demand vide Exhibit PW4 dated 12th October, 2011 and Exhibit PW6 dated 9th July, 2012 out of which were delivered to the defendant. This has not been denied or controverted in evidence if the defendant had complied with request the claimant would have no basis of approaching the court for redress which is not free as the claimant would not only defray expenses for all the statutory filing of all originating processes and pleading and exercising his constitutional right to counsel of his choice to represent him in this suit in respect of which professional fees and experts would be charged. Relying on the case of ACB Ltd V Ajugwo (2012) All FWLR (Pt. 607) 697 CA. Costs follow event, a successful party is entitled to costs except where there are special reasons for the depriving him of such entitlement and this ought to be shown by the court. Award of cost is always at the discretion of the court but such discretion must be exercised judiciously and judicially. Costs are not imposed as a punishment on the party who pays them neither are they awarded as a bonus to the benefiting party, the party entitled should only be indemnified for his out of pocket expenses and be compensated for the true and fair expenses for the litigation costs must not be excessive. That are regarded as excessive if they cannot be justified in relation to the circumstances of the case. Since there is no universal table for fixing costs, court must take the peculiar circumstance of each case and consideration in forming their opinion whether to award cost or not. There is no right of appeal against an award of costs except with the leave of the High Court or Appellate Court by virtue of Section 241(2) of the constitution of the Federal Republic of Nigeria 1999. The Extension to this provision of the constitution is where, in addition to appeal has to cost there is appeal on other issues. Claimant submitted that in order to prove cost, the claimant relied on Exhibit PW13 and PW13A both dated October 2011 and 30th September, 2013 in proving his claim. The evidence have not been controverted or countered by the defendant throughout the hearing of this case. On this the claimant submitted that he has established by credible incontroverted evidence his case and claim for cost and he therefore, required the court discretion to be exercised in his favour judicially and judiciously in order that the claimant be indemnified of all out of pockets expenses and cost of litigation incurred to seek justice. In conclusion claimant prayed the court to discountenance in its entirety the argument of the defendant and grant all the claims and prayers of the claimant in the impact of justice. On points of law the defendant dealt with the three issues raised by the claimant in his final written address seriatim. On issue one the defendant submitted that it is incumbent upon the claimant to place cogent and credible evidence before the court in proof of his claims. This duty the claimant has failed to discharge. That it is settled law that the case of the claimant will succeed or fail on the strength of the claimant’s case and not on the weakness of the defendant. That the claimant as an employee of the defendant and the relationship of the claimant and the defendant was captured in Exhibit PW1. That the contractual relationship of the claimant and the defendant was devoid of statutory and constitutional flavour. That the defendant as the custodian of power and right over the claimant had unrestricted power to have indefinitely suspended and the claimant without pay when the claimant failed the acid test of integrity and trust test on account of the syndicate fraud of N7 Billion. That the stock in that the claimant admitted in his answer to a question during cross-examination when he answered as follows:- Question - Does Professionalism include trust and integrity? Answer - Yes. Question - Does Professionalism include high ethical standing? Answer - Yes it does. That the claimant did not however deny that the mastermind of the coordinated/syndicated large scale fraud of N7billion paid the huge sum of N1,500,000.00 into his account. The claimant in paragraph 4.12 of his final written address forcefully owned up like he did during trial that he worked with the king pin of the N7billion fraud still at large at various branches of the defendant, namely Garki, Wuse and the National Assembly. Infact, the claimant and Leonard Okoh, the alleged master mind of the coordinated fraud were at the Garki branch of the defendant when the fraud was uncovered. The successful fraud of 7 Billion rightfully described as coordinated/syndicated was via wire transfer which transcends branches. The word ‘coordinate was defined in THE NEW INTERNAITONAL WEBSTER’S COMPREHENSIVE DICTONARY OF THE ENGLISH LANGUAGE, 2010 EDITION AT PAGE 287 thus:- To act in harmonious or reciprocal relation. Similarly, the Black’s Law Dictionary (supra) at page 1450 defines ‘syndicate as follows:- An association of individuals formed for the purpose of conducting and carrying out some particular business transaction, ordinarily of a financial character, in which the members are mutually interested. (Emphasis supplied). The defendant submitted that the defendant under a regulatory duty to investigate and report back to the Central Bank of Nigeria the circumstances surrounding the successful syndicated/coordinated fraud of the whooping sum of N7billion acted eminently within the limit of her legal authority as the employer of her employee (the claimant herein and others) to place them on indefinite suspension without pay till exhaustive investigation nationally and internationally is concluded. That the claimant failed woefully to adduce evidence during trial to show how the defendant as the employer of the claimant were not authorized by law to indefinitely suspend the claimant without pay considering the nature of the contract of employment between the claimant and the defendant that was destitute of statutory and constitutional flavor. Indeed, as recent events demonstrate, even employees under a contract of employment with statutory flavor be they judicial officers or Central Bank Governor are not immune from exercise of the authority of their employer from being sent on suspension. Instructively, the claimant did not place any evidence before this court to show that his contract of employment with the defendant had any statutory flavor. Thus the authority of Baba vs. Nigerian Civil Aviation Training Centre (NCATC) (1991) 5 NWLR (Pt. 192) etc which the claimant heavily relied upon in his final written address are totally distinguishable from the present suit and thus very much unhelpful to the claimant’s case. The defendant as a financial institution with approved organogram/structured as approved by the regulatory agencies has layers of authority that examines issues of staff misconduct before the final decision is taken. These layers of authority was ably stated by DW1 when in an answer during cross examination explained that exhibit DW1 was an outcome of the first layer of investigation-Human Resources Committee which was further subject to the-consideration approval of the Executive Management Committee and finally the Board Management Committee. In his oral testimony, DW1, in response to a question during cross examination on the date on exhibit DW1 with regard to when the investigation into the syndicated fraud of N7billion was concluded, DW1 had stated that; The Human Resources Disciplinary Committee is just an aspect of the investigation. We are talking about N7bilion fraud. It took a very long time to carry out a conclusive investigation. DW1 further gave evidence on oath that ‘the Human Resources Disciplinary Committee reached the conclusion that the claimant did not provide convincing explanation on the sum of N1,500,000.00 paid into his account by Leonard Okoh and by that his integrity as a staff of the defendant was questionable and recommended that his appointment should be terminated. The emphasis is on the word ‘recommended’ which presupposes the definite action(s) of a higher authorities. That is the simple and clear import of exhibit DW1. It is vehemently submitted that the oral evidence of DW1 that ‘the Human Resources Disciplinary Committee is just an aspect of the investigation was never contradicted and thus constitute a cogent and credible evidence that exhibit PW10 was the outcome of the exhaustive investigation into the syndicated fraud of N7billion. He urged the court to so hold. See also, Section 122 of the Evidence Act 2011. The law has long been settled that an employer reserves the right to suspend, terminate, dismiss and/or question her employee for any act of infraction. The exercise of such power under our law is NOT howsoever illegal. Hence, the Supreme Court in the case of Imonikhe vs Unity Bank Plc, (201 1)12 NWLR (Pt. 1262), p. 626 held that; By the conditions of service of any organization properly so- called, an employer ought to be able to discipline erring employees. (Emphasis supplied) See also Section 11 of the Interpretation Act, Cap 123, Laws of Federation of Nigeria, 2004 and Okomu Oil Palm Co. Ltd vs. Iserhienrhien (2001) 6 NWLR, 710, where the law was reinforced that the right to hire include the power to discipline and fire. The law as today on suspension of an employee is as pronounced upon by the Supreme Court in Longe vs. FBN Nig Plc (2010) 6 NWLR, Pt. 1189 p. 1 where the apex court held thus; Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee but there is neither work being done in pursuance of it nor remuneration being paid (Emphasis supplied) By the authority of Longe vs. FBN Nig Plc (supra) which has similar facts and circumstances with the present case, the claimant is howsoever entitled to the sum of N30,666,666.00 as the claimant did not work for the defendant during period of his indefinite suspension without pay. We urge your lordship to so hold. Against the foregoing, it is submitted therefore that Yusuf vs. V.O.N. Ltd (1997) 7 NWLR (Pt. 463) a COURT OF APPEAL decision which the claimant heavily relied upon cannot by the doctrine of stare decisis be the position of the applicable law in the case at hand. Most importantly, Yusuf vs. V.O.N. Ltd is a far much old decision made in 1997 by an inferior court. We urge your Lordship with respect, not to countenance Yusuf vs. V.O.N. Ltd and other anachronistic decisions (BABA VS. NIGERIAN CIVIL AVIATION TRAINING CENTRE (NCATC), ACB vs. UFONDU (1997), ONALAJA vs. AFRICAN PETROLEUM LTD and NPMB vs. ADEWUNMI) cited and relied upon by the claimant. Most significantly, the facts and circumstances of Yusuf vs. V.O.N. Ltd are clearly distinguishable from the case at hand. The bone of contention in Yusuf vs. V.Q.N. Ltd was the interpretation of clause 18 of the Employees’ Handbook (Exhibit G); which is dissimilar with the case at hand. On the doctrine of stare decisis, he referred the court to Yabatech vs. M.C. & D. Ltd (2014) 3 NWLR (Pt. 1395), page 616, pp.659, paras. F-H; the Court of Appeal held as follows: A case can only be an authority for what it actually decided, having regard to the facts and, issues agitated before the court. Thus, the ratio of a case should not be pulled by the hair of the head and made willfully to apply to cases where the surrounding circumstances are different. Restating the inviolability of the doctrine of stare decisis in our body law, the Supreme Court in the recent case of Ardo vs. Nyako (2014) All FWLR, (Pt. 744), 130 at 157, paras E - G; per Aka’ahs JSC held that; The principle of judicial precedent or stare decisis is des med to ensure orderliness, certainty and discipline in the judicial process. The principle holds inferior courts to the Supreme Court of Nigeria to be bound by the previous decisions of the court on similar facts in the consideration and determination of matters before them. Where the lower courts are encouraged not to follow the previous decision of the Supreme Court on similar facts, such an encouragement is designed to promote anarchy, chaos and judicial rascality, which is not the design or purpose of the principles of the rule of law. It follows therefore that the lower courts are bound in law to follow the previous decisions of the Supreme Court on similar facts to the case under consideration by them. The way opened to the courts to avoid the principle of judicial precedent is by distinguishing the previous decisions from the facts and/or circumstances of the case under consideration. (Emphasis supplied) Since the facts of the case at hand is in dissimilar in material particulars to the facts in the cases cited and wrongly relied upon by the claimant (BABA VS. NIGERIAN CIVIL AVIATION TRAINING CENTRE (NCATC), ACB vs. UFONDU (1997), ONALAJA vs. AFRICAN PETROLEUM LTD and NPMB vs. ADEWUNMI) and clearly distinguishable from the instant case. We further urge this court to hold that the claimant who did not render services to the defendant during the period of indefinite suspension is not entitled to payment of the sum of N30,666,666.00. That is the position of the law as at today as was stated in Spring Bank Plc vs. Babatunde (2012) 5 NWLR, pt 1292, p. 83, where the Court of Appeal held thus; A servant who has been unlawfully dismissed cannot claim his wages for services never rendered. In reaction to the decision of Strabag Construction Nig. Ltd vs. Adeyefa (2001) FWLR (Pt. 60) 1538 which the claimant ingeniously cited out of context, we submit that the facts and circumstances of this case are world apart from the Strabag’s case. Exhibit Pl0 is clear in wording and context that the claimant’s appointment with the defendant was because the claimant’s services were no longer required and has nothing to do with allegatioi3 of commission of crime contrary to the dictum quoted out of context in Strabag’s case. The law is that a master or an employer is at liberty to do away without unwanted servant. In the recent case of Dudusola vs. Nigeria Gas Company Limited (2014) All FWLR (Pt. 713), 1902 at 1912, paras V - F, the Supreme Court held that; In a master and servant relationship, the master has an unfettered right to terminate or even dismiss the servant. The motive in exercising the right does not render the exercise of the right ineffective. In order words, the master is at liberty to terminate the servant’s employment with or without any reason. Termination of a contract of service even if unlawful brings to an end the relationship of master and servant, employer and employee. A servant even though willing and able, cannot be imposed on an unwilling master (the employer). In the instant case, where the relationship between the parties was that of master and servant, the respondent rightly terminated the appellant’s employment on grounds that his services were no longer required. (Emphasis supplied) The defendant in the case at hand as the undisputed master of the claimant hired him, subjected him to confirmation processes, promoted him at will, transferred and re-deployed him at will, placed him on indefinite suspension when the claimant’s conduct was in question, did terminate his appointment when his services were no longer required. This much was admitted when the claimant under cross-examination in answer to a question-’since your suspension has the defendant been in operation? He answered ‘OBVIOUSLY YES’. Against the forgoing, we pray this court with respect to resolve issue one against the claimant and hold that the indefinite suspension of the claimant without pay by the defendant was not illegal and that the claimant is not entitled to be paid the sum of N30,666,666.00 being unearned salaries during the period of the indefinite suspension on the authority of Longe vs. FBN and Spring Bank Plc vs. Babatunde (supra). We urge your lordship to so hold. Issue Two DW1 in answer to a question whether indefinite suspension without pay is the same with termination had thus under oath; They are not the same. Indefinite suspension without pay takes away all the right and privilege of that staff except the air he breathes. On the required length of notice to terminate a staff of the defendant, the defendant DW1 gave unchallenged evidence that:- It is one month but it is not applicable to those on indefinite Suspension. It is clear as crystal that the indefinite suspension without pay placed on the claimant by the defendant was never lifted until exhibit PW10. Thus, the claimant was undoubtedly disqualified from the luxury of any length of notice be it one month or otherwise from the defendant for his termination to be lawful. Most significantly, Exhibits PW1 and PW2 as admitted by the claimant in paragraph 7.2.5 of his final written address were resoundingly silent on the length of notice required of the defendant (the master) to give to the claimant (the servant) in the event of termination of contract of service. In the case of CBN vs. Igwio (2007) 14 NWLR pt. 1054, p393, the Supreme Court held that:- Where a contract including the contract of employment involves several documents, the trial court can only determine issues before it on the basis of the documents including letters relating to the contract and conduct of the parties. It is therefore right to urge this court to into account only Exhibits PW1 and PW2, the unchallenged evidence of DW1 and the conducts of the parties in consideration of the length of notice or otherwise in the instant case and not have recourse to common law rule which is clearly extraneous to the case at hand. Not only is this court bound to make findings of fact as was held in the case of Yadis Ltd. (Supra), it was also held in the case of Olalomi Ind. Ltd vs. N.LD.B (2009)39 NSCQR p. 240 @ 277 that; .. It is the duty of the trial court to consider the entire evidence before it both oral and documentary before giving a judgment.. . Further, we crave your lordship’s indulgence to adopt our submission and argument in response to the claimant’s issue one to issue two as the cases cited and relied upon are distinguishable from the case at hand. The decided cases of above facts and circumstances are unhelpful to the plaintiff’s seminal brief. We urge this court to discountenance the decided cases wrongly relied upon by the claimant. Specifically on paragraph 7.2.8. of the claimant’s final written address, we urge your Lordship not to countenance the decided case of Olafimihan vs. Nova-lay Tech. Ltd (1998) 4 NWLR (547) as the facts, circumstances and issue canvassed therein are dissimilar to the instant case and thus distinguishable. In Olafimihan vs. Nova-lay Tech. Ltd, the Court of Appeal held inter alia; The indefinite suspension (exhibit 4) was issued in complete violation of the conditions of service which empowered the employer to suspend any worker without pay for only a maximum of two weeks...’ Please see page 619-620, paras H - A; There was no evidence placed before this court containing, neither was it ever canvassed by the claimant that there was a time duration for the claimant or any staff of the defendant to be placed on indefinite suspension without pay. From the foregoing, it is clear that the issue presented to the court in the claimant’s brief left out completely the case of the claimant as formulated in his pleading and indeed canvassed during the hearing of the matter. The claimant rightly quoted the principle of law as enunciated in Garuba vs. Kwara Investment Co. Ltd (2005) All FWLR (Pt. 252), 252 and Kabel Metal Mg. Ltd vs. Ativieb (2012) 10 All FWLR but clearly on unrelated facts and thus unhelpful to the claimant’s case. The claimant for obvious reason sheered away from the import of Section 136 of the Evidence Act 2011. It is trite that a case cannot be said to be a binding precedent unless the ratio specifically decides the issue presented in the case, otherwise it is obiter. Please see Afro Continental vs. lyantun (1995) 9 NWLR (PT. 420) 411. We further invite this court to rely on the settled position of the law as stated in Ogbonna vs. Ogbuji (2014) 6 NWLR (Pt. 1403) 205 at, 232 paras B-C, where it was held thus; The law has always placed a burden of proof of any allegation on the shoulders of the person who would fail if no evidence is adduced in support. Thus, while a Plaintiff has the burden to prove his case, the defendant might get his turn where the Plaintiff has given sufficient and credible evidence in proof of his case. (Emphasis supplied) The failure of the claimant to prove by credible evidence that his contract of employment constitutes a breach of his contract of employment on account of no notice pursuant to the termination of his appointment based on the subsisting indefinite suspension without pay at the time of Exhibit PW10 is irredeemably fatal to his case. On this, we rely on Civil Design Ltd vs. SOA (2007) 29 NSCQR (Pt. 11), 1298 at 1320 where Onnoghen JSC adumbrated the law thus; It is settled law that a plaintiff must succeed on the strength of his case and not on the weakness of the defence, Still on the paucity of evidence to ground the claimant’s claim, we rely on the case of Olatunji vs. Waheed (2012)7 NWLR, pt. 1298, p.24 @ 50 para D, where the Court of Appeal held thus; No matter how brilliant a counsel’s address is, it cannot take the place of legal evidence. Finally, assuming though not conceding that the lack of notice to the claimant by the defendant before the termination of his employment (Exhibit PW10) was wrongful, we humbly draw the attention of this court to the recent Supreme Court decision in Idufueko vs. Pfizer Products Ltd (2014) All FWLR (Pt. 745)269 at 283 paras E-H; where it was held thus; Where the termination of a contract of service was found to have been wrongful, the measure of damages that the plaintiff could be entitled to would be the salaries for the length of time during which notice of the termination would have been given in accordance with the contract of employment. Again, assuming though not conceding that the lack of one month notice to the claimant before the termination of his contract of service with the defendant was wrongful, by the authority of Idufueko vs. Pfizer Products Ltd, the claimant will be entitled to only one month of his basic salary and not three months as erroneously canvassed by the claimant in paragraph 7.2.5 anti 7.3.7. of his final written address. But then that is far from being the case as the evidence of DW1 that the fact of indefinite suspension without pay erodes all rights and privilege of the claimant inclusive of the luxury of one month notice for termination of contact of employment. Moreover exhibits PW1 and PW2 for emphasis was silent on the requirement of notice from the defendant to the claimant in the event of termination of the contract of service. Before resting our submission on this issue, may we crave the indulgence of the court to rehash the time worn out legal principle that justice is not a one way traffic as the court cannot do justice for one party at the expense of another party. See Josiah vs. State (1985) 1 NWLR, (PT. 1), 125 AT 141 and Ganiyu vs. State (2013), 10 NWLR, (PT.1361) page 29. Against the foregoing, we respectfully urge your lordship to resolve issue two formulated by the claimant in the negative and hold that the termination of the contract of service of the claimant by the defendant was not wrongful and the claimant is entitled to one month salary in lieu of notice arid damages consequent upon the subsisting indefinite suspension without pay at the time of exhibit PW10. We urge your Lordship to so hold. Issue Three We adopt and rely on our submissions above in response to claimant’s issue one and two in persuading the Honourable Court to resolve issue three formulated by the claimant in the negative. The law is that the claimant having failed to prove his prayer for declaratory reliefs, his claims for payment of accumulated salaries arrears, damages, solicitors fees, etc fails flat. Need we stress that damages are not awarded as a matter of course and thus it must be justified before it could be awarded. The claimant having failed to prove his case that his indefinite suspension without pay by the defendant was illegal and that the termination of his contract of employment by the defendant was wrongful before this court is not entitled howsoever to any ancillary relief of award of damages. Please see Adeniran vs. Alao (1992)2 NWLR (Pt. 223) 272, where it was held thus; Damages are a form of financial reward to a plaintiff who has suffered a wrong caused or precipitated by the wrongful act or conduct of a defendant. Therefore where there is no wrong there cannot be damages. Damages are not awarded on sentimental grounds. The award of damages is discretionary and it has to be exercised judiciously and judicially. Exhibits PW13 and PW13A are mere receipts issued by the claimant’s Solicitor purportedly for payment for legal services by the claimant. The defendant had via their paragraph 28 of their statement of defence stoutly denied the averment of the claimant and put him on strictest proof thereof. The standard of proof in this case places a burden on the claimant to adduce cogent and credible evidence such as: a) deposit slip of the cheque of N1,500,000.00 made in favour of the claimant’s solicitors by the claimant; or b) evidence of electronic transfer of the sum of N1,500,000.00 duly authenticated by the claimant’s bankers in view of the extant regulatory regime prohibiting cash transaction in excess of N500,000.00 by individuals and N 1,000,000.00 for corporate bodies. In Ogiri vs. N. A. O. C. (‘2010,) 14 NWLR (Pt. 1213) 208 AT222-223, it was held inter alia:- Where there is no evidence to support a claim for damages, the claim ought to be dismissed. The defendant urged that court to resolve issue three in the negative and hold that the claimant is not entitled to any cost howsoever. Having carefully, considered the authorities, cited, the submissions and the oral evidence given in this case, the issues for the court to determine is:- Whether the claimant from the facts disclosed in this case he is entitled to the reliefs sought. In this suit the claimant claims 7 reliefs against the defendants. Claims a – c will be treated together. The briefs facts of the case are that the claimant was employed by the defendant by a letter of offer dated 13th July, 2005 as a Senior Banking Officer (Exhibit PW1). His employment was confirmed by a letter of confirmation dated 2nd November, 2005 (Exhibit PW5). Following what the defendant referred to as the discovery of a coordinated fraud scheme an Aso Savings and Loans Account domiciled in Garki Branch, the claimant by an internal memo dated 6th August, 2010 was suspended indefinitely from work without pay by the defendant. By a letter dated 12th October, 2011 Exhibit PW5 the claimant’s through his counsel requested for his re-instatement. On November 9, 2012 the claimant through the same Solicitor sent a letter of reminder for his re-instatement. However, on the 11th of February, 2013, the appointment of the claimant was terminated on the ground that his services were no longer required by the Management of the Bank by the defendant. The claimant case is that the defendant disciplinary committee had already concluded the investigation 2 months earlier before he was requested to proceed on indefinite suspension. To the claimant the suspension was illegal, null and void that he is entitled to the sum of N30,666,666.00 (Thirty Million Six Hundred and Sixty-six Thousand Six Hundred and Sixty Naira) Only being his cumulative salary from 6th August, 2010 to 18th March, 2013. The defendant argued that the claimant and other members of staff of the defendant, Abuja business unit were suspended to allow for unfettered internal Bank investigation of the fraud described by the defendant as coordinated to ascertain persons that facilitated the syndicated fraud. The law is that an employer has the right in disciplining any erring employee for any act of misconduct but it must be done within the terms of contract of employment. The terms of the contract of service is the bedrock of the claimant’s case, and upon which the claimant must found his case he succeeds or fails upon the terms thereof. In this case the terms and conditions of service binding the claimant and the defendant are Exhibits PW1 and PW2 the letter of offer of appointment and confirmation of the claimant employment respectively. In a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein, in deciding the rights and obligations of the parties. Western Nigeria Development Corporation V Abimbola (1966) 4 NSCC 172 at 88. The contention of the defendant is that the claimant having not rendered any services to the defendant during the period of suspension cannot be heard to claim the wages for services he never rendered. Whether the employer has the power to suspend the employee for misconduct depends upon the terms of the particular contract of employment. Suspension will be wrongful on the part of the employer if there is no power to suspend given by the contract. In such a case the employee may sue for wages he has lost by being suspended. In this case other than the letter of offer of appointment Exhibit PW1 and the letter of confirmation Exhibit PW2 the defendant did not refer to the provision of the terms of contract that gives the defendant the power to suspend the claimant indefinitely in the first instance. The defendant pleaded conditions of service but did not tendered it. The right to suspend a worker by an employer will not be implied. If an employer wishes to reserve the right to suspend an employee he must do so by express terms. The primary question to be determined now is what is the status of an employee during suspension? The suspended employee remains the staff of the organization until the contract is determined. In other words, the position is that the contract subsists until determined. Adekunle V Western Region Finance Corporation (1963) NWLR. In this case the claimant remained an employee of the defendant until 13th of March, 2013 when his appointment was terminated. The defendant cannot escape liability from paying the claimant salary during the period of suspension until the employment was determined on 18th of March, 2013. On that date the claimant appointment was terminated for reason that his services were no longer required by the Management of the Bank. The claimant was suspended without pay from the services of the defendant, on the 6th of August, 2010, and his appointment terminated in March 2013. From both letters mentioned above, there is nothing in them inputting that the claimant was suspended or his appointment terminated for his involvement in so called coordinated fraud. Suspension letter did not amount to a letter of dismissal. It is quite clear from the records that the claimant was not accused of committing any fraud, and going by the submissions of the learned counsel to the defendants and his reference to the content of Exhibit DW1, the internal memo of indefinite suspension, which states thus:- There is no word, words or phrase contained in Exhibit DW1 where the defendant’s accused nor indicted the claimant of any allegation of fraud. Similarly, the claimant all through his oral testimony did not adduced scintilla of evidence either written or oral where the defendant accused the claimant of fraud. That Exhibit PW3 which the claimant referred to in paragraph 11 of his pleadings did not however, state that the claimant was suspended for fraudulent activity. It did not accuse the claimant of master minding any fraud. The investigation of the coordinated fraud of N7B was reported to the Nigeria Police for investigation. The fraud was investigated and the Police came up with a report, exonerating the claimant from any guilt Exhibit PW12. While it is appreciated and the fact that the defendant cannot be denied of the right to investigate the N7 Billion fraud they claimed was stolen, caution must be taking not to rubbish every staff of the Bank for mere suspicion. The defendant must not be misled that it has the power of life and death over his employees by his counsel. The claimant is therefore entitled to his salary from 6th August, 2010 to 8th March, 2013, and he was still in the employment of the defendant, and the disciplinary committee concluded the investigation since 14th June, 2010 and recommended the claimant’s appointment be terminated. Going by the submission of the counsel to the defendant Exhibit PW10 the report of the disciplinary committee was an outcome of the exhaustive investigation into the syndicate fraud of N7 Billion. The committee came up with the recommendation that the claimant’s appointment be terminated since 14th June, 2010 and this was not done until 18th March, 2013. The counsel said other investigations were been carried out but no single report or document to that effect was tendered in the court. Since the claimant appointment subsisted during the period of suspension until the appointment was terminated on 13th March, 2013, the claimant is entitled to his salaries and allowances for the period, with interest at the prevailing bank rate at that time. On the claimant’s claim e & f for the sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) Only cost of the suit. The court makes an award of N200,000.00 (Two Hundred Thousand Naira) Only. On the claimant’s request for the payment of N100,000.00 (One Hundred Thousand Naira) Only he made to his counsel, for writing of letters the court makes no award. Finally, on claimant’s claim on relief g for the sum of N958,834.00 (Nine Hundred and Fifty-eight Thousand Eight Hundred and Thirty-four Naira) Only being the claimant’s monthly salary as damages. The defendant has contended on this issue that claimant claim is not entitled to any cost howsoever, or to the reliefs sought. The claimant however said, that the letter of offer of employment and the letter of confirmation of his appointment, provided for the period of notice of a month or a month salary in lieu of notice to be given by him to the Bank before he can resign his appointment. The two documents were silent and did not provide for the notice to be given by the defendant in the event it wants to dispose with the service of the claimant. Where there is a contract of service there is an implied term, the contract can only be terminated by a reasonable notice. What is reasonable is always dependent on the nature of the contract and status of the employee. The higher the position held by the employee, it will be the notice required to put the contract to an end. The claimant was a senior officer of the Bank he therefore requires a notice of a month to be given or a month salary in lieu of notice as against 3 months been demanded by him. This issue is resolved in favour of the claimant to be paid a month salary in lieu of notice. For the reasons given above, the claimant claims succeed in part, in claims a, c, d, f and g. Judgment is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE.