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IN THE NATIONA L INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE OYEWUMI. OYEBIOLA.O DATED 13th OF MAY, 2015 SUIT NO: NICN/LA/378/2013 BETWEEN MRS. AYISHAT OMOSUZI ENAHORO - CLAIMANT AND GERMAINE AUTO CENTRE LTD - DEFENDANT REPRESENTION- Adeniyi Pokanu with him are OlubusolaAshiru and OlufunshoAkintade for the claimant Victor Gwam with him is Oki Achika for the defendant JUDGMENT The claimant on the 18th of July, 2013 filed a complaint against the defendant praying the following reliefs: 1. A DECLARATION That the indefinite suspension and the subsequent dismissal of the claimant by the defendant is unjust, unfair, inappropriate and gross contravention of its employees terms of employment. 2. A DECLARATION that there exist a tripartite agreement between FCMB, the claimant and the defendant. 3. A DECLARATION that under the existing tripartite contract there is a nexus between the claimant and respondent in which the respondent enjoin and or compel the claimant to take a loan from FCMB, which loan is supposed to be repayable from the salary of the claimant, cannot be terminated unless the respondent redeems, or pays the emolument of the claimant towards the payment of the loan. 4. A DECLARATION that since the settlement of the aforesaid loan is tied to the salary of the claimant, the respondent having therefore terminated the service of the claimant should be compelled to offset the loan. 5. A DECLARATION that her employment contract cannot be terminated without recourse to the rights of the parties therein. 6. AN ORDER directing the defendant to pay with immediate effect to the claimant the sum of N608,120.00 (Six Hundred and Eight Thousand One and Twenty Naira) being the total sum of the claimant’s salary arrears from months of February – June 2012, pension deductions at various rates from 2008 to June, 2012 and one (1) salary in lieu of notice. 7. AN ORDER commuting the alleged termination of employment to compulsory retirement without any loss of terminal benefits. 8. AN ORDER mandating the defendant to pay/liquidate the loan sum collected by the claimant from FCMB through the defendant company. 9. Cost of litigant of this suit at the sum N500,000.00. 10. N5 Million (Five million Naira) General damages for the unwarranted harassment, molestation and the psychological trauma caused the claimant as a result of the defendant’s needless act. It is the claimant's case as stated in her sworn deposition, that she was employed by the defendant vide a letter dated 1st of March, 2007 and her employment confirmed on 7th August, 2007. The claimant averred that she served diligently thereby leading to the defendant awarding her several awards. That she offered to assist a customer into the company who brought his car for servicing in the defendant’s office. Before coming with the customer, she put a call across to her immediate manager but couldn’t reach him she then called the HR/Admin Manager who threatened to deal with her as it was not her duty to drive a customer’s vehicle into the company. The claimant later put a call to her manager again and the call came through. She explained all that happened between her and the HR/Admin Manager and the Manager said that there was no problem since she was trying to secure clients for the defendant company. After attending to the client, she got back into her office and her Manager assigned some other task to her which she began almost immediately. While working, the Admin Officer of the defendant, handed her a letter of suspension from the defendant company dated 27th of February, 2012. She averred that she was neither queried nor invited before a panel and did not receive any notice from the defendant until the 26th of June, 2012 when the claimant terminated her employment vide a letter dated 3rd of May, 2012. She averred that the defendant has not paid her salary for the month of February and also her pension. She stated that the total sum of salaries and pension deducted from her salary is as follows; i. Arrears of salaries from February- June N260,000.00 ii. Pension at the rate of N4,950.00 month (2008- 2009) N118,800.00 iii. Pension at the rate of N 5,720 month (2010 2011) N137,280.00 iv. Pension at the rate of N5,720 month (January - June) 2012 N40,040.00 v. 1 month salary in lieu of notice N52,000.00 Claimant further averred that the defendant encouraged the claimant to collect salary loans which the claimant did in the sum of N320,000 with FCMB with interest. That upon the termination of her employment from the services of the defendant the loan is increasing in interest since the settlement of the aforesaid loan is tied to the salary of the claimant and the respondent having terminated her employment should be compelled to offset the loan. Claimant averred that she instructed her counsel to do a formal demand to the defendant but they failed and neglected to reply the letters. That the defendant’s decision and termination thereof is unjust, unfair and alien to the terms of employment. She tendered in support of her case documents which were admitted and marked as Exhibits AE1-AE7. The defendant at the trial of this case testified through its HR/Admin Manager, Adekunbi Adeeko, who denies that the claimant was unjustly dismissed from work and alleged that her work output and team spirit level were poor. The defendant also denies claimant’s paragraphs 5- 15 of its statement of facts. Defendant averred that by a memo dated 7th February, 2012 it had banned all staff members from bringing customers vehicles to work because staff members used it as a ploy to come late or avoid coming to work altogether. That claimant in breach of the laid down directive and violation of same, she brought a client’s car to the defendant’s premises. Upon discovery, the defendant suspended the claimant. That it is not indebted to the claimant in the sum of N608,120.00 and it is not a party to any loan transaction between the claimant and FCMB. That the claims of the claimant are baseless, frivolous and urged the court to dismiss same with cost. He tendered in support of the claimant's case documents which were admitted and marked as ExhibitsAA1-AA4. The claimant on the 22nd of November, 2013 filed a reply to the defendant’s statement of defence wherein she averred that she served the defendant meritoriously and her work out put, team spirit were excellent which led the defendant to award her with excellence performance as an outstanding staff of the month. That in response to paragraph 5 the statement of defence, the claimant stated that she did not drive the alleged customer’s car while in employment of the defendant and the claimant like every other staff of the defendant only facilitates customers’ patronage in the defendant’s auto care service and spare parts department. That she is not in violation of any of the defendant's laid down rules. The claimant confirmed that the defendant failed to remit her pension to her pension fund administrator and refused to pay arrears of salaries which made it impossible for her to offset the salary loan which stood at N554,000. She further averred that the defendant has remitted part of the already deducted pension contributions after several letters from claimant’s counsel. That in response to paragraph 9 of defendant’s statement of defence, the defendant did not only encourage the claimant to take up the said loan facility through the defendant’s senior manager HR Admin but was equally part of the said loan agreement with the defendant’s undertaking. That upon enquiry at FCMB, on the 13th of October, 2013 she found out that her name is not among the employees no longer in the employment of the defendant thereby fuelling the believe that the claimant was still in the employment of the defendant but has deliberately refused to pay-up the loan balance to the bank. Claimant stated that the defence of the defendant is unreasonable and an attempt to hoodwink the court from doing justice in this suit. The defendant on the 19th of August, 2013 filed its written address wherein it framed a sole issue for the court’s determination. 1. Whether the claimant is entitled to the claims she is making in this suit from the defendant. On this issue it is counsel’s submission that the claimant’s employment is a contract and the contract can be terminated by either party. He cited the cases of AKINFE V UBA PLC [2007] 10 NWLR PT 1041 P.185; GARUBA V KWARA INVESTMENT CO LTD [2005] 1 SC (PT 11) P.80. That the claimant was put on notice by the internal memorandum and the defendant accordingly suspended and subsequently terminated the claimant’s employment in violation of same. He posited that it is the implied obligation of employee to obey all reasonable and lawful orders and violation of same may entitle the employer to dismiss the employee. He cited the case of UNITED KINGDOM ATOMIC ENERGY AUTHORITY V CLAYDON [1974] ICR 128; D.A NIIG ALEP LTD V OLUWADARE [2007] 7 NWLR (PT. 1033) P.336. Continuing he submitted that suspension is a temporary cessation of rights and privileges of an employee. The disciplinary procedure gives the employer time to make up its mind as to what should be done to the employee. He cited the case of LONGE V FBN [2006] 3 NWLR (PT. 967) P 228. He stated that if the suspension is lawful, and leads to termination or dismissal, the employee cannot claim any right that may have accrued during the period of such suspension. Thus the claimant is not entitled to salaries that accrued from February to June 2012 as they failed to crystallise upon termination of the claimant’s employment. As regards the claimant’s pension, counsel cited Sections 1(1) and 11(5) of the Pension Reform Act, 2014 and submitted that the pension deducted are payable to the claimant’s fund administrator. Thus the court cannot grant the claimant’s claims that the pension deductions be paid to her. Counsel on the claims of the claimant mandating the defendant to pay the loan she collected from FCMB submitted that the letter of offer and loan Agreement are encapsulated in Exhibits AE8 and AE9 are between the claimant and FCMB. That a person who is not a party to a contract cannot be bound by its terms. He cited the case of A.G FEDERATION V AIC LTD [2000] 6 SC (PT 175) AT 183. He submitted that the clause 10 of the loan Agreement is clear that it is within the contemplation of the parties that the claimant may leave the employ of the defendant and such departure from the defendant’s employ would not affect the claimant’s liability to repay the loan granted. Counsel also submitted that claimant did not lead evidence for her claim of general damage thus deemed to abandon the claim. He cited the case of BUHARI V OBASANJO [2005] 2 NWLR (PT.910) P 241. Counsel urged the court to deem the claim abandoned and dismiss in its entirety. The claimant on the 7th of November, 2014 on her own part filed her final written address wherein she framed a sole issue for the court’s determination. 1. Whether the suspension and the eventual termination of the claimant’s employment were not unlawful in the circumstances of the case. On the issue, counsel submitted that an employer has the right to discipline its employee. He can also terminate the contract of employment at any time for any reason or no reason provided the terms of contract are complied with. He cited in support the case of OLANIYAN&2 ORS V UNIVERSITY OF LAGOS & ANOR [1985] 2 NWLR (PT 9) 599 @ 612. He submitted that the relationship between her and the defendant is as stated in Exhibit AE5 that is the defendant’s handbook. That its failure to comply with Exhibit AE5 as to the disciplinary procedure violated the contract between the claimant and the defendant and also against the principle of fair hearing as no query or warning letters were issued to her to defend the alleged situation. Counsel urged the court to so hold. Counsel on the issue of claimant’s suspension contended that the law is trite on where suspension does not indicate whether the claimant’s suspension shall be without pay, the claimant’s wages or salaries shall be paid in full. He cited the case of MRS AKINYOSOYE YEMISI V FEDERAL INLAND SERVICE [2013] FWLR (PT 693) 1992 RATIO 2 P 398. He stated that where the court finds the suspension of the claimant to be unlawful, then the claimant is entitled to her claims against the defendant. Counsel urged the court to hold so. On the issue of remittance of pension claimant’s counsel submitted that the defence counsel referred to the provisions of section 11 (5) (b) of the Pension Reform Act, 2014 which it failed or neglected to comply with by remitting claimant’s deducted pension when due. That exhibit AE4 shows that the defendant did not remit the fund several months after deducting same from claimant’s salary. Thus the defendant cannot be allowed to reap from its own wrong. He cited the case of TERIBA V ADEYEMO [2010] 13 NWLR (PT. 1211) PG 263. Counsel posited that the defendant traversed in paragraph 19 -27 is in contradiction with Exhibit AE3 dated 6th July, 2011 and signed by the defendant’s witness for and on behalf of the company. That the agreement is still in existence and binding on the parties. He submitted that failure of the defendant to pay the salaries, entitlement and also remit the pension of the claimant as at when due occasioned negative rise in the loan and made it practically impossible for the claimant to repay the loan. He urged the court to hold so. Counsel submitted that at the said time of the alleged offence there was no internal memo as the said internal memo only came up as an afterthought and in other to justify the unlawful termination of the employment. That there is no evidence contradicting the claimant’s assertion that she has never seen the said internal memo. He further submitted that Exhibit A4 of the defendant clearly contradicts the procedure of appraisal as stated in Exhibit AE5 and AE3 (Best Staff Award for July of the same year). Counsel urged the court to grant the claims of the claimant. I have given a careful consideration of the processes filed by the parties, the argument of counsel and the authorities relied upon. It is in my view that the issues for determination are; 1. Whether or not the suspension and eventual dismissal of the claimant is wrongful 2. Whether from the facts and circumstances of this suit, the claimant is entitled to her claims. The claimant was employed by the defendant vide a letter dated 1st of March, 2007 and her employment confirmed by a letter dated 7th August, 2007. It is the claimant's case that she served diligently thereby leading to the defendant awarding her several awards. That she offered to assist a customer into the company who brought his car for servicing in the defendant’s office. Before coming with the customer, she put her HR/Admin Manager in the know and the latter threatened to deal with her as it was not her duty to drive a customer’s vehicle into the company. After attending to the client, she got back into her office and her Manager assigned some other task to her which she began almost immediately. While working, the Admin Officer of the defendant, handed her a letter of suspension from the defendant company dated 27th of February, 2012. She averred that she was neither queried nor invited before a panel and did not receive any notice from the defendant until the 26th of June, 2012, when the defendant terminated her employment vide a letter dated 3rd of May, 2012. It is the contention of the defendant that by a memo dated 7th February, 2012 it had banned all staff members from bringing customers vehicles to work because staff members used it as a ploy to come late or avoid coming late to work altogether or for personal gains. That claimant in breach of the laid down directive and violation of same, she brought a client’s car to the defendant’s premises. Upon discovery, the defendant suspended the claimant and subsequently terminated her contract of employment. The Court in AKINYANJU V. UNIVERSITY OF ILORIN [2005]7NWLR (PT. 923), 87; defines suspension to mean, to lay aside, defer, or hold in abeyance, it also means to halt halfway but not to bring to an end. See also UNIVERSITY OF CALABAR V. ESIOGU [1997] 4 NWLR, (PT. 502), 719 @ 723. The law is trite that suspension is an aspect of discipline of a staff by an employer and the employer has the right to discipline its erring employee in the interest of the organisation. It is also a basic principle of law that an employer has the right to suspend an employee when necessary, with or without pay or at half pay. However, employers cannot suspend without pay where there is no express or contractual right to do so as the rationale in suspending an employee without pay is that the employer has taken it upon itself and outside the court to assess its own damages for the employee’s misconduct at the sum which would be represented by wages of the days the employee remains suspended. SEE BINOS DAUDA YAROE V THE NIGERIA STOCK EXCHANGE [2014] 46 NLLR (PT 147) 45. Suspension as held in plethora of cases may also be to punish or to investigate the complaint against an employee. It may also be to victimise an employee or may be malafide. The question now is, is the claimant suspension within the ambit of the provision of the terms of her contract? The claimant was indefinitely suspended on the 27th of February, 2012 for acts in violation of the company's rules and regulation. Specifically put she was said to have without prior permission or approval from the authority brought in customers vehicle. Her indefinite suspension was a prelude to the termination of her employment vide a letter dated 3rd of May, 2012 without pay. The defendant employee's hand book i.e. exhibit AA5 on record article 19; titled 'Disciplinary measures' the second paragraph thereof states amongst others that where a staff commits any of the offences listed there under may lead to severe disciplinary measure including suspension without pay, termination or instant dismissal. The first offences listed for which an employee may be suspended, dismissed or termination do not include any specific offence for which reasons the defendant indefinitely suspended the claimant in this case. In exhibit AE6 which is the letter of indefinite suspension, the defendant alleged therein that the claimant single handedly without prior permission or approval from constituted authority, embarked on a mission to bring in customers' vehicle or repairs or service and thereby acting in gross violation of the company's rules and procedure. It is the defence of the defendant that by an internal memo dated 7th February, 2012, the defendant banned staff from bringing in customers vehicles to the office. The claimant denied seeing such a memo or the issuance of same by the defendant whilst she was in its employ. She went on to state that she did not drive the customers' car rather she gave the driver of the vehicle assistance for him to be able to locate the workshop gate, hence she accompanied the vehicle to the office for repairs and also that she had earlier called her immediate manager, one Mr Kazeem Olanipekun whose phone rang but he did not pick before she called DW who is the HR/Admin Manager informing her that she would be a bit late to the office. See paragraphs 6 and 7 of claimant's sworn deposition. DW denied paragraphs 5-15 of the claimant's sworn deposition, which facts includes her above defence. Article 20 of exhibit AA5, i.e. the defendant's employee's handbook, also made a plain provision for suspension. In both the provisions in article 19 and 20 of the handbook i.e. exhibit AA5, the defendant may suspend without pay. The implication of this is that claimant's indefinite suspension without pay is in tandem with the above provision. It is thus my finding that the claimant was suspended for the purposes of investigating the alleged act complained off by the defendant. It is trite law that where the power to suspend was given by the terms of contract compliance with the terms of service is sacrosanct. Having found supra that the indefinite suspension of the claimant by the defendant is in consonance with her terms of employment, it is accordingly my finding that the suspension of the claimant is not wrongful. I so hold. I have equally stated earlier that claimant's indefinite suspension was a prelude to termination of her employment which came after 3 months. Now, was the period between the date of suspension and eventual termination of the claimant's employment reasonable for the purposes of investigating claimant. Or aptly put was the period between the date of claimant's suspension and eventual termination reasonable enough for the defendant to make up its mind to determine her employment? Before answering this question, I need to first consider the disciplinary procedure as stipulated in the terms of the contract . It is also part of the disciplinary measures stipulated in the defendant's employee's Handbook that to either terminate or dismiss its employee, the procedure to follow are that the erring employee should be giving a warning, cautioned, when a warning has been issued to the erring employee thrice within a month, the erring employee's service shall be terminated. The procedure that must be followed has to be followed as both parties are bound by the terms of contract. The offence for which the claimant was indefinitely suspended is considered to be a serious offence which should earn a summary dismissal, however, the defendant terminated her employment. The provision on termination are as stated in Article 17, which is to the effect that where the defendant finds that the employee's continued employment is harmful to the overall interest of the company,[ which is what was stated in the claimant's letter of termination of employment]; his employment may be terminated by giving him 30 days notice or one month basic salary in lieu of notice and such an employee shall receive full entitlements. There is nothing on record in proof of payment of entitlements of the claimant. Also absent on record is any prove to authenticate one month payment of salary in lieu. As held in LONGE'S CASE supra, suspension cannot be a ploy to circumvent the period of notice. I have perused the documents tendered and admitted on record, non is a similitude of a notice or in prove of a month salary in lieu of notice. This is contrary to the terms of her contract of employment. It is thus premised on that, that I find and hold that the determination of the claimant's employment, even if the period of investigation is reasonable, without a month salary in lieu of notice as prescribed in her contract of employment is wrongful. I so hold By exhibit AA4, i.e. the termination of employment letter dated 3rd May, 2012, the defendant gave about five reasons for which the company terminated her employment. It is also a basic principle of law that in a master servant relationship the master reserve the right to fire its servant when it so wishes, however, this is not a blanket principle of law, the rider to this is that where an employer gives a reason for firing or terminating the employment of its staff, it behooves it to proof same. This is the basis of the decision of the Court in AFRIBANK NIG.PLC V OSISANYA [2000] 1 NWLR (PT. 642) 592. I have painstainkingly gone through the processes before me, including the sworn deposition of the defendant's witness, I could not find where the defendant has proven the alleged reasons for which the claimant's employment was terminated. There is no single evidence on record to substantiate the reasons the defendant wrote in the claimant's letter of termination as well as the testimony of DW on record that claimant's work output and team spirit level were poor. It is also of paramount importance to reiterate the fact that the claimant was not given a hearing at all before her appointment was determined. The rules of natural justice which is synonymous with the right to fair hearing arises where there is an allegation of any misconduct against an employee which may result and in fact did result in some form of punishment, deprivation of some right or loss of means of livelihood to the employee and that the defendant in the instance case failed or refused to do. There is nothing on record to show that the defendant gave the claimant at least an opportunity to answer to a query or questioning in any form or under any guise to defend the allegation before determining her employment. It is premise on all that I have stated supra, that I find the termination of the claimant's employment by the defendant equally wrongful. If so then what is the consequences. Courts have severally held that no servant can be imposed by the court on an unwilling employer even where the employer's behavior towards the employee is wrongful. For the wrongful act of the employer, he is liable to his wronged employee in damages. See the cases of UNION BANK OF NIGERIA LTD V OGBOH.[1995] 2 NWLR (Pt. 380) 647 at 664, FESTUS OLANIFIMIHAN VS NOVA LAY-TECH LIMITED [1998]4 NWLR (PT 547) 608 @ 620. The claimant is entitle to her one month salary in lieu of notice in addition to any other terminal benefits she is entitled to. I so hold. On the second issue, which is whether from the facts and circumstances of this suit, the claimant is entitled to her claims, it is claimant’s claims that the defendant encouraged the claimant to collect salary loans which the claimant did in the sum of N320,000 with FCMB with interest. That upon the termination of her employment from the services of the defendant the loan is increasing in interest since the settlement of the aforesaid loan is tied to her salary and the respondent having terminated her employment should be compelled to offset the loan. The defendant on the other hand contended that the company was not privy to the loan agreement between the claimant and FCMB and thus not entitled to offset the sum incurred as stated by the claimant. A careful perusal of Exhibit AE4 that is the loan agreement between the claimant and FCMB reveals that the agreement binds only the claimant and FCMB and the defendant company is not privy to same as nothing on the agreement depicts a nexus between the claimant, defendant and FCMB as the claimant wants the court to believe. Exhibit AE3, Section B, thereof titled ''EMPLOYER'S COMMITMENT'' which the claimant would want the court to invoke as a commitment by the defendant to her loan, has no legal commitment to the defendant. The purport of this form as evinced thereon is a commitment on the part of the defendant to ensure that salaries of the claimant as its staff is domicile continuously with the bank as long as the claimant remains its staff, and nothing more. The loan agreement and the release of the loan sum was all for the benefit of the claimant. It is thus my finding that the defendant is not privy to the agreement and as such not entitled to any the liability/s of the claimant on the said loan. I so hold. Now, on the issue of unremitted pension of the claimant. it is the claimant's claim that the court should direct the defendant to remit same. I agree with the defence who although did not controvert the claimant's claim for pension, but submitted that the unremitted pension could only be paid to the claimant's Pension Fund Administrator and not the claimant personally in accordance with the Pension Reform Act 2014. That is the position of the pension's Act. I find after going through exhibit AE4, the statement of account of the claimant issued by her pension managers, IBTC, that the last remittance made by the defendant into her account was the sum of N4,400.00 for November 2009 and this was paid in arrears on 5th May, 2010. It thus means that the defendant has since then failed or refused to remit the claimant's pension into her PFA account, consequent upon which I order the defendant to remit all the unremitted pension both deducted and its own contribution to the claimant's PFA for the month of December 2009 till May 2012, when her employment was terminated. I so hold. Summarily, I find that the claimant’s claims succeed in parts. For the avoidance of doubts I declare and order as follows- 1. That the indefinite suspension of the claimant is within the permissible contract of her employment and thus lawful. 2. That the termination of the claimant's contract of employment is wrongful, for non payment of one month salary in lieu of notice by the defendant to her and she is thus entitle to damages. 3. That the claimant shall be paid one month salary in lieu of notice which is in the sum of N52,000 as revealed on exhibit AE3. 4. It is declared that the defendant is not privy to the loan agreement between the claimant and FCMB and thus not liable to pay the said loan. 5. I order the defendant to remit into the claimant's PFA, i.e. IBTC Pension Fund Managers from December, 2009 till May 2012 when the claimant's employment was determined and proof shown to the court within one month of this judgment. 6. I award the cost of N50,000 to the claimant. 7. All sums awarded in this judgment shall be paid within 30 days of this judgment failing which 10% interest shall accrue on same. Judgment is accordingly entered. HON. JUSTICE OYEBIOLA O. OYEWUMI JUDGE.