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IN THE NATIONAL INDUSTRIAL COURT IN THE OWERRI JUDICIAL DIVISON HOLDEN AT OWERRI BEFORE HIS LORDSHIP: HON. JUSTICE O.Y. ANUWE Date: January 19, 2015 Suit No: NICN/OW/33/2013 Between: Mr. Solomon Jude - Claimant And Nigeria Bottling Company Plc. - Defendant Representation: Lawrence I. Elekwachi for the Claimant Emeka Nwagwu, with him, V. N. Onyeonoro (Mrs.) and C. C. Uchechukwu (Mrs.) for the Defendant JUDGMENT The Claimant commenced this suit by a complaint filed on the 10th day of December 2013, seeking the following reliefs: 1. A Declaration that the Claimant's suspension from work by the Defendant since January, 2013 till date is contrary to the terms and conditions of his employment and therefore wrongful. 2. An Order directing the Defendant to lift the Claimant's suspension and recall him to fully resume his duties as an employee of the Defendant. 3. The sum of N1,577,191.20k (One Million, Five Hundred Seventy Seven Thousand, One Hundred and Ninety One Naira, Twenty Kobo) being the Claimant's gross salary from January 2013 to December 2013 and thereafter a monthly sum of N131,432.60 (One Hundred and Thirty One Thousand, Four Hundred and Thirty Two Naira, Sixty Kobo). 4. The sum of N277,500.00 (Two Hundred and Seventy Seven Thousand, Five Hundred Naira) being medical expenses incurred by the Claimant as a result of injuries sustained by him in the course of carrying out his duties as an employee of the Defendant. 5. N90,000,000.00 (Ninety Million Naira) being damages for permanent injury sustained by the Claimant in the course of his employment by the Defendant. Accompanying the Complaint, the Claimant filed his Statement of Facts, the Claimant’s written statement on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The defendants on the 7th day of February 2014, entered appearance and filed their Statement of Defence along with their witness’s written statement on oath and list of witnesses. Hearing commenced on the 12th day of November 2014. The Claimant testified for himself as CW1. One Macdonald Iheme, a Human Resource Manager of the Defendant testified for the Defendant as DW1. Hearing was concluded by the 11th day of June 2015 and the parties were ordered to file their final written addresses in accordance with the rules of this court. The defendant filed their final written address on the 14th day of October 2015. The Claimant filed his Final written address on the 27th day of October 2015. Parties adopted their respective written addresses on the 9th day of November 2015. The succinct facts of this suit as distilled from the claimant’s final written address are that the Claimant was a Store Clerk in the Raw Materials Section at the Owerri depot of the Defendant Company before his transfer to Orlu depot in September 2012. According to the Claimant, on the 28th of September 2012, he was shot by armed robbers leading to a permanent loss of his right hand's middle finger when he was returning from work. He was treated at the Federal Medical Centre, Owerri with the knowledge of the Defendant. After the treatment, the Defendant refused to pay his medical bills, and on resumption at work, the defendant informed him that he had been suspended from work. The Claimant averred the suspension breached the terms and conditions of his employment, he has not been paid his monthly salary and allowances from January 2013 till date, hence the institution of this suit. The Defendant its final address filed on 14/10/2015 articulated four issues for determination in his final written address, thus: 1. Whether the Claimant established by cogent and legal evidence, that the Defendant suspended him from service. 2. If the answer to the 1st issue is in the affirmative, whether it was illegal to suspend the Claimant and if it will ensure him with a cause of action. 3. Whether the Defendant was entitled to terminate the services of the Claimant in the circumstances of this case. 4. Whether the Claimant's fourth relief can be granted independently of other reliefs in this suit against the Defendant. In arguing the first issue, counsel contended that the Claimant only alleged in his pleadings that he was suspended by the Defendant but failed to produce any cogent evidence or letter supporting this claim. By Section 132 of the Evidence Act, 2011 the burden rests squarely on the claimant to introduce the evidence of suspension, whereas the defendant is expected to deny it. See MUHAMMED vs. DHL INT'L LTD (2001) FWLR (Pt. 38) 1312; BABALOLA vs. RUFUS (2010) All FWLR (Pt. 515) 309. The Defendant through DW1 denied ever suspending the Claimant but asserted that instead the Claimant went through a trial after a query was issued to him and his employment was subsequently terminated. Counsel urged the court to resolve this issue in favour of the Defendant and against the Claimant. Regarding issue two, it is counsel’s submission that an employer retains the authority to urge an employee not to report to duty at common law. Section 21 of the Handbook (Junior Staff) (Exhibit ‘B’) provides as follows: “upon the commission of any serious offence by an employee, the company shall be entitled to suspend the employee from service”. Also, Section 17(i) of the Labour Act, 1974, CAP 198, Laws of the Federation 1990 contains a provision in paragraph (b); the employer is not obliged to pay where the employee is suspended from work as a punishment for a breach of discipline or any other offence. Also, the Claimant agreed that he was issued a query and he responded to EXHIBIT ‘H’ and ‘I’ and he went through a trial panel before he was suspended. The Junior Staff Handbook established the legality of the sanction of suspension. Counsel referred to the case of AGHWE vs. ZAPATA MARINE SERVICE (NIG) LTD (1976) 6 ECSLR 268, where it was held that, if an employer is able to establish a practice of suspending employees without pay, it would be binding on all the employees in the establishment even if a particular employee is ignorant of it. Counsel urged the court to resolve this issue in favour of the Defendant and against the claimant. With respect to issue three, counsel stated that Section 16 of exhibit ‘B’ reads as follows: “It is fully understood and recognized that the company or the employee may terminate the employment without assigning any reason whatsoever by giving the required notice of one Month (or pay in lieu) or as the case may be required by his job grade”. Also, Exhibit ‘D4’ the claimant’s Letter of Termination was lawfully given to the Claimant and he was also advised through it to collect all entitlement thereon. In the case of FAKUADE vs. O.A.U.T.H (1993) 5 NWLR (Pt. 291) 47, 58 Paras C-D, it was held thus: “…generally speaking a Master can terminate the contract of employment with his servant at any time and for any reason or for no reason at all, provided the terms of contract of service between them are complied with”. See also TAIWO vs. KINGSWAY STORES LTD (1950) NLR 122; NWANGWU v NZEUKWU (1957) SC NLR 61; AMODU V AMODE & ANOR(1990)5 NWLR (PT150) 356. Counsel urged the court to resolve this issue in favour of the Defendant. Concerning the fourth issue raised, counsel argued that the Claimant during his cross-examination on 10th December, 2014 admitted that his Head of Department referred his matter to Dr. Perry who is in charge of HYGIA (The Health Care providers of the Defendant's workers). He agreed that he was admitted at Federal Medical Centre, Owerri as a staff of the Defendant. He admitted during the same cross-examination that EXHIBIT "C", the receipt of N277,500.00 is to be settled by HYGIA. Thus, the Claimant having taken benefit of the services of HYGIA, his fourth Relief does not avail him against the Defendant. In conclusion, counsel urged the court to resolve all issues distilled by the Defendant against the claimant and dismiss this suit following the failure of the main claim, all ancillary claims also fail. In the claimant's final written address, counsel submitted that the following four issues call for determination in this case, thus: 1) Whether the Claimant's suspension from work by the Defendant for a period of over two years breached the terms and conditions of his employment, and if yes, whether the Claimant is entitled to a resumption of his duties. 2) Whether there was a termination of the Claimant's employment by the Defendant. 3) Whether the Defendant is entitled to a refund of his medical expenses incurred while in the employment of the Defendant. 4) Whether damages for permanent injury claimed by the Claimant are sustainable in all the circumstances of this case. It is counsel’s contention on issue 1 that, the Claimant's suspension from work by the Defendant clearly breached the terms and conditions of his work especially having regard to Exhibit '8' (the Junior Staff Handbook) which is the document dealing with the rules and regulations guiding the Claimant's employment. Counsel stated that the standard of proof in all civil cases is on preponderance of evidence or balance of probabilities. It is also settled that while the burden of proof in civil matters essentially lies on the Claimant to introduce evidence, such burden is however not static but shifts from side to side with the progression of the case. See Section 133 (1) and (2) of the Evidence Act 2011. Counsel also referred to the cases the under-listed cases in support of his submissions. See: a. OLANIYAN vs. ODEYOYINDE 1996)7 NWLR (Pt. 459) 205 at 210. b. BROADLINE ENT. LTD vs. MONTEREY MARITIME CORPORATION (1995) 9 NWLR (Pt. 417) 1 at 47. c. INEC vs. ACTION CONGRESS (2009) 2 NWLR (Pt. 1126) 524 at 612 The Claimant in his statements on oath which he adopted as his evidence in this case, led evidence that he is an employee of the Defendant and that after undergoing treatment following an armed robbery attack while returning from work at Orlu, he meant to resume duties sometime in December 2012 only to be told by the Defendant that he has been suspended from work. This piece of evidence was not contradicted under cross-examination. Rather the Claimant merely confirmed that he was indeed suspended from work but that his suspension from work by the Defendant was not connected with the armed robbery attack. Counsel’s submission is that there is sufficient evidence to support the allegation of suspension from work. Notwithstanding that an employer may be entitled to suspend an employee; such suspension must be done in accordance with the rules and conditions guiding the employment. In the instant case, what governs the Claimant's employment is Exhibit 'B'. Counsel referred the court to Part III, Section 21 of Exhibit 'B', where it is stated that the period of suspension of an employee can never exceed 14 days in one instance and in another instance, cannot exceed 60 days. Again, the Claimant gave evidence that he has eagerly been awaiting his recall since December 2012 but till date such has not happened. The Claimant also said that since January 2013, in the aftermath of the suspension, he has not been paid his salary and allowances till date. A simple calculation from December 2012 to date evinces that the Claimant has been on suspension for a period of well over two years or twenty four months, in clear breach of the provision of Exhibit B. This is the breach the Claimant is complaining of. Also, in a master/servant relationship as exists between the Defendant and the Claimant, parties are bound by the terms of their contract which incidentally in this case are Exhibits 'A' and 'B'. See the case of NWAUBANI vs. GOLDEN GUINEA BREWERIES PLC (1995) 6 NWLR (Pt. 400) 184 at 211. It is counsel’s succinct argument that the defendant’s act in suspending the Claimant from work without pay for a period exceeding that stipulated by Exhibit '8', the Defendant acted ultra vires the terms and conditions of the employment. Therefore, in the event the Court upholds the claimant’s argument, that the Defendant breached the terms of Exhibit '8' in suspending the Claimant, it follows that the Claimant is entitled to be paid all arrears of salary and allowances, in addition to a resumption of his duties as an employee of the Defendant. Counsel urged the court to uphold the argument in this preceding paragraph. Counsel’s initial submission on issue two is that the documents marked as Exhibits D1, D2, D3 and D4 cannot be admitted in evidence having been afflicted by a fundamental vice. This is owing to the fact that the Defendant failed to frontload these documents and file any list of documents to be relied on during trial. That is to say that the Claimant did not have a preview of these documents and could not have conducted any comprehensive cross-examination relating to the offensive documents marked as Exhibits D1 to D4. This failure to frontload seeks to undermine the issue of eliminating surprises; the mischief which the Rules of this Honourable Court set out to cure by providing that all documents to be relied on by parties to a case must be filed alongside a claim or a defence. Counsel referred the court to Order 9 Rule (1), which reads thus: “Where a party served with a Complaint and the accompanying documents as stipulated in Order 3 of these Rules intends to defend and/or counter claim in the action, the party shall not later than 14 days or any other time prescribed for defence in the complaint file; a. A statement of defence and counter-claim (if any). b. List of witnesses to be relied upon. c. Copies of documents to be relied upon at the trial. d. Written statements on oath of all witnesses listed to be called by the Defendant.” It is the contention of counsel that the Rules of Court are meant to be obeyed, particularly where the word “shall” is used as an operative part of any provision in the Rules as is the case with Order 9 of the National Industrial Court Rules just cited above. The word “shall” denotes in the circumstances of Order 9 Rule 1 (c) of the Rules of this Court a mandatory provision. This is owing to the fact that the intendment of this above-cited provision is to ensure that the ‘surprise element’ which abridges a party's right to fair hearing during trial is eliminated. Counsel urged the Court to hold that the documents marked as Exhibits D1, D2, D3 and D4 are inadmissible in evidence and accordingly reject the same. Furthermore, counsel submitted that there was no termination of the claimant’s employment. The Claimant from his written statements on oath, maintained consistently that his employment was never terminated and that he never received any termination letter. The Claimant was never cross-examined on the issue of termination of appointment by the Defendant even as the said Claimant maintained that his employment was not terminated and that he did not receive any letter purporting to terminate his employment. And when the Claimant's Solicitors addressed a letter to the Defendant via Exhibit 'E' (dated 22nd March 2013), complaining about his suspension from work and failure to pay his medical bills, the Defendant did not respond to the letter. The law is trite that the Court is well entitled to act on any unchallenged evidence. In STEYER (NIG) LTD v. GADZAMA (1995) 7 NWLR (Pt. 407) 305 at 338, the Court held thus: “Where the oral evidence of a Plaintiff has not been challenged, contradicted or shaken under cross-examination and the evidence is in line with the facts pleaded, the evidence must be accepted as the correct version of what it says and the Plaintiff is entitled to Judgment”. See also BROADLINE ENT. LTD vs. MONTEREY MARITIME CORPORATION (SUPRA) at 27. In summary, counsel urged the Court to act on the not contradicted evidence of the Claimant and hold that there was never a termination of his employment by the Defendant. Counsel’s submission on issue three is that there is evidence, which remained uncontradicted, that the Claimant was transferred on the 18th of September 2012 to Orlu from Owerri. See Exhibit 'F'. The Claimant gave evidence that it was the responsibility of the Defendant to make arrangements for his accommodation in his new place of work at Orlu. Section 15 of Part III of Exhibit 'B' confirms this. That section stipulates that it was incumbent on the Defendant to, amongst other things; provide accommodation for the Claimant in his new place of work at Orlu. The Defendant failed in this duty, thus compelling the Claimant, in the process, to be shuttling from Owerri to Orlu daily for purposes of his work. It was on one of such trips on the 28th of September 2012, that the Claimant was attacked by armed robbers resulting in his hospitalization at the Federal Medical Centre, Owerri. The Claimant tendered Exhibit 'C' being receipt for payment he made for his treatment. The medical expenses have not been refunded by the Defendant. The Defendant countered by saying that it had a medical arrangement with a healthcare provider called HYGIA to take care of medical problems of its employees. It is counsel’s argument that there is evidence via Exhibits 'G' and 'E' that the Defendant was well aware of the Claimant's admission at the Federal Medical Centre but upon being discharged, neither the Defendant nor its agent HYGIA accepted to pay the Claimant's medical bill and even when the Claimant went ahead and paid, they have still refused to refund him till date. Counsel stated that the Defendant cannot escape liability as the principal of HYGIA which failed in its obligation to the claimant. Again, neither the said Dr. Perry of Hygia nor the Defendant itself paid his medical bills upon demand. Counsel urged the Court to resolve this issue in the affirmative by holding that the Claimant is indeed entitled to a refund of his medical expenses by the Defendant. On issue four, counsel submitted that the Claimant is truly entitled to damages for permanent injury as claimed. This proceeds from the fact that the Defendant must be held roundly responsible for the Claimant's travails because this armed robbery attack could possibly have been prevented if the Defendant had secured an accommodation for the Claimant in his new positing at Orlu. This evidence was neither challenged nor contradicted thus requiring the Court to act on same. See the case of AGAGU vs. MIMIKO (2009) 7 NWLR (Pt. 1140) 342 at 425. In the light of the above submission, it is our considered position that a case for the award of damages for permanent injury has been made out by the Claimant. In conclusion, counsel urged the court to grant all the reliefs sought by the Claimant. In the defendant’s Reply on Points of Law, the Defendant stated that the claimant’s argument that the Defendant refused to pay the medical bills of the Claimant was not borne out of evidence. Also, there was no iota of evidence that the Defendant suspended the Claimant as the Claimant could not produce any such evidence on suspension or who in the Defendant Company suspended him. The law is settled that parties are bound by their pleadings and therefore cannot make a case outside their pleadings. See OCHONMA vs. UNOSI (1965) NMLR 321. Again, regarding the objection of Claimant's Counsel on EXHIBITS D1, D2, D3 and D4, counsel stated that the facts and the contents of the Exhibits are clearly pleaded at paragraph 6 of the Defendant's statement of defence. Admissibility is governed by pleadings and relevance consequently the objection to the Exhibits is misconceived. See FBN vs. JIBO (2006) 9 NWLR (Pt. 985) Pg. 251. Also, the Claimant did not deny paragraph 4 of the statement of defence of the Defendant. The averments became admitted facts. The Claimant was appropriately terminated by the Defendant who advised him to collect all his entitlements if any from the accounts department. It is counsel’s argument that Pleaded facts, well known to the Claimant cannot graduate to surprises or surprise elements as alleged by the Claimant. Having been pleaded and being relevant to the facts in issue, Exhibits D1-D4 are admissible and counsel urged the Court to so hold. This is more so as the National Industrial Court Rules by Order 5 Rule 1 empowers the court to treat non- compliance as an irregularity and give necessary directions for the justice of the case. More so, the Claimant did not provide any proof of any injury and his claim of a refund of hospital expenses as shown in EXHIBIT ‘E’. Also EXHIBIT "F" clearly shows that the Claimant was paid Hundred and Fifty Thousand Naira (N150,000.00) as accommodation and Six Thousand Naira (N6,000.00) as re-settlement grant. In view of the foregoing, the Defendant urged the court to discountenance the submission of the Claimant's Counsel and dismiss his claim. Court’s Decision Having heard the respective counsels to the parties in their final written addresses, it is my view that the sole issue to be determined in this suit is whether the claimant has proved his case as to be entitled to the reliefs he sought? In considering the issue, it is necessary to review the evidence adduced by the parties. The claimant testified as the only witness in his case. In his evidence, the claimant said that he was employed by the defendant in March 2003 and posted to the defendant’s Maiduguri office. After several transfers, he was transferred to the defendant’s Owerri office and from there to the defendant’s Orlu depot as a store keeper on 18th September 2012. The claimant put his employment letter and memo for his transfer in evidence as Exhibits A and F respectively. He also stated that by the terms and condition of his employment, contained in the Junior Staff handbook, the defendant has the responsibility to provide him with the means and facility to settle down where he was transferred to but because the defendant had not made arrangement for his accommodation at Orlu, he had to shuttle to work to and from Orlu. On 28th September 2012, while returning to Owerri from Orlu, he was attacked by armed robbers who robbed him, beat him up and also shot his middle finger. He informed the defendant of the incidence who advised him to seek medical attention and also granted him medical leave. It is the claimant’s evidence that he was treated at the Federal Medical Centre Owerri but despite the treatment, he suffered permanent loss of the middle finger of his right hand. The defendant has refused to settle his medical bills, which amounted to N277,500.00, and he still suffers pain from the injury. After exhausting his sick leave, the claimant said he resumed work in December 2012 but he was informed by the defendant that he has been suspended. He also said he was issued a query to which he responded and that the defendant’s motive for suspending him was to avoid compensating him for the injury and loss he sustained in the course of his employment. He testified further that he has not been recalled from suspension till date and he has also not been paid his salary and allowances from January 2013 till date of which his gross monthly salary at the time of his suspension was N131,432.60. The claimant also said he has not received any letter terminating his employment. The claimant further said he was never involved in forgery of signature or falsification of expense claims. In his further evidence, the claimant stated that the defendant was aware of the armed robbery incidence and staffs of the defendant were aware of his treatment at the Federal Medical Centre, Owerri. He relied on a computer printout of communication between personnel of the defendant, which is Exhibit G, to establish that the defendant was aware of his condition. He said further that the defendant never informed him about any arrangement for his special healthcare provider. That was why he went to FMC Owerri for treatment. It was when he was in Maiduguri that the defendant enrolled him with Hygeia Health Maintenance Organization. But the defendant never made such arrangement for him in Imo state and he was never informed of any arrangement with any health care provider in Imo State. The claimant maintained that he has never received any letter of termination from the defendant. Under cross examination, the claimant said he was a store clerk at Owerri between 2011 and 2012 before he was transferred to Orlu as store keeper. He said he was given query while on sick leave and in his reply, he denied the allegations against him. The claimant produced the query and reply by order of court and they now in evidence as Exhibits H and I. The claimant stated further that after replying the query, there was a hearing where he adopted his reply and that he was suspended after the hearing process. With regards to the armed robbery incidence, he said he reported the accident to the office before he went to FMC. He admitted he knows Hygeia used by the defendant. He also knows Dr. Perry who is in charge of Hygeia in Owerri plant. The claimant said he told Dr. Perry about his health condition through his HOD. The claimant said he phoned Dr. Perry who told the claimant to meet him at the Federal Medical Centre, but on getting to FMC on the agreed date and time, Dr. Perry did not show up. He was admitted at FMC as staff of the defendant. The bills of defendant’s staff at Owerri are settled by Hygeia. His bill from FMC ought to be settled by Hygeia which bill he has passed to Dr. Perry but he has not been refunded. The defendant’s witness is one Macdonald Iheme, who introduced himself as the Human Resources Manager of the defendant. DW1 testified that the defendant conducted a review of raw material transportation claims and payment in Owerri plant between May and August 2012 when the claimant was the raw material clerk at the plant and discovered the claimant was involved in falsification of expense claims. The claimant was issued a query on this account which he replied and there was a hearing on the matter. The claimant’s employment was terminated after the hearing by letter dated 18/1/2013 in which letter the claimant was advised to collect his terminal entitlements from the Plant Finance Manager. DW1 said that the claimant was not suspended. He also stated that the defendant has medical arrangement for its staffs who are all insured and all medical treatment and expenditure are managed by the medical insurance providers. Under cross examination, DW1 maintained that the claimant was never suspended but that his employment was rather terminated since January 2013 and that a hearing was conducted in January 2013. The claimant has not been paid wages as a result of the termination of his employment. DW1 stated further that that although he was aware the claimant was attacked by armed robbers, he is not aware he was admitted at FMC Owerri. He said also that the defendant has HMO that manages the health of staff. There is no medical record or medical bill from the claimant’s HMO to the defendant. DW1 tendered exhibits D1, D2, D3 and D4 in evidence to which this court gave leave to the claimant’s counsel to address this court on the admissibility of the document in his final written address. Permit me to quickly consider the objection at this point. In his final written address, the claimant’s counsel submitted that these exhibits are not admissible in evidence because they were not frontloaded and the defendant did not file any list of documents. Counsel relied on Order 9, Rule 1 of the NIC Rules 2007. I must first mention that the requirement of Order 9 rule 1 for the frontloading of documents to be relied on at trial has nothing to do with admissibility of the document. The requirement is only to give the other party advance knowledge of the documents referred to in the party’s pleadings. Admissibility of documents is mostly regulated by the Evidence Act and the requirements have always been relevancy, admissible form and pleading. In this case, the defendant pleaded the documents or made averments relating to the documents. I have also seen that the documents are relevant to the determination of the issue involved in this suit. Without further ado, the claimant’s objection is overruled. I hold that Exhibits D1, D2, D3 and D4 have been properly admitted in evidence. From the pleadings and evidence adduced by the parties, there is no dispute that the claimant was an employee of the defendant. The disputes, as I see it, are with regards to whether the claimant was under suspension till date or his employment has been terminated. There is also the dispute whether the defendant is liable for and to pay the claimant’s medical expenses. A look at the reliefs sought by the claimant will show that they fall in either of these two identified issues or disputes. Therefore, the question whether the claimant has proved his case as to be entitled to the reliefs sought will be examined from the angle of these two areas of dispute. In reliefs (a), (b) and (c), the claimant sought this court to declare his suspension from work by the Defendant since January, 2013 as being contrary to the terms and conditions of his employment and an order directing the Defendant to recall him to resume work. He also wants his accumulated salaries from January 2013 in the sum of N1,577,191.20 paid to him. In his evidence, the claimant said when he resumed work in December 2012, he was informed by the defendant that he has been suspended and he has not been recalled from suspension till date. Has also said he has not been paid his salary and allowances from January 2013 till date. His gross monthly salary at the time of his suspension was N131,432.60. The claimant also said he was issued a query by the defendant which he replied but he has not received any letter terminating his employment. He said under cross examination that he was given query while on sick leave and after replying the query, there was a hearing where he adopted his reply and that he was suspended after the hearing process. DW1 on the other hand said following a discovery of falsification of expense claims, the claimant was issued a query which he replied and after which there was a hearing. The claimant’s employment was terminated after the hearing vide Exhibit D4. DW1 said that the claimant was not suspended nor is he on suspension. While the claimant contends that he is on suspension till date, the defendant maintains that the claimant was at no time suspended but his employment was terminated. Whether the claimant is entitled to the above reliefs depends on whether his detachment from the defendant’s employment since January 2013 was a result of suspension or termination. Since the claimant’s allegation is that he was suspended from work, the burden of proof of the suspension rest on him. In his evidence of how he was suspended, the claimant merely said, in paragraph 22 of his initial deposition, that “instead of allowing me to resume my duties, the defendant rather informed me that I have been suspended from work”. The claimant did not say how he was informed or from which of the defendant’s staff he got the information. The claimant did not tender any suspension letter. The court is left to wonder whether the suspension was “informed” to him orally or in writing or by whose words or under whose hands. In the face of the defendant’s denial of the suspension, the claimant is expected to go further to produce cogent evidence to convince this court he was actually suspended. The claimant’s evidence on the suspension is so weak that this court is not satisfied that he was suspended. The defendant’s case is that the claimant’s employment was terminated and to prove this, DW1 tendered defendant’s hearing process form and the termination letter in evidence, which are Exhibits D3 and D4 respectively. DW1 also said the claimant’s employment has been terminated that was why he has not been paid any salaries. The termination letter is dated 18th January 2013 and addressed to the claimant. It informed that claimant that his employment has been terminated from that day based on the panel decision of the hearing held on 17/1/2013. The claimant has however denied receiving this letter. I cannot also find anything written on the letter to show that the claimant received it. The defendant too has not shown any proof of service of the letter on the claimant. The bottom line is that the claimant did not receive Exhibit D4. There is however Exhibit D3. Both parties are ad idem that there was a hearing on the allegations against the claimant. DW1 said Exhibit D3 is the form of the proceedings of the hearing. The exhibit shows that the affected staff was the claimant and the hearing was conducted on 17/1/2013 on allegations in the query. At page 3 of the exhibit, there is a hand written admission of the allegation made in the claimant’s name and the report contained that the penalty for the offence is termination. The claimant was present in the hearing and he signed the report alongside the panel members and the witness. In my view, from the content of Exhibit D3, it is clear that the claimant is aware of the defendant’s verdict of termination of his employment right at the hearing on 17/1/2013. Furthermore, the claimant said he has not been paid any salary since January 2013. It is clear from the foregoing that the claimant knew from the date of the hearing that his employment was to be terminated. He was not under suspension as he wants this court to believe. Even if he didn’t receive any official communication, in the form of Exhibit D4, terminating his employment, the subsequent stoppage of his salary is a clear message that his service was no longer required. It is trite that in a master and servant employment, as in this case, termination of the employment can be made orally, in writing or by conduct. See IFETA vs. SHELL (2006) All FWLR (Pt. 314) 305 at 334. Therefore, not having been given the Exhibit D4 notice of termination may have occasioned a wrongful termination of his employment but his employment had been certainly terminated. Therefore, I find that the claimant was not suspended but his employment was rather terminated by the defendant. The claims in reliefs (a) and (b) fail. The claimant having ceased to be an employee of the defendant since January 2013, relief (c) cannot also be granted. He cannot be paid for period he was no longer in the defendant’s employment or for services he did not render. I will however not conclude this part of the judgment without considering the manner of termination of the claimant’s employment. Exhibit B, the junior staff condition of service, provides that after confirmation of the employment, the period of notice to terminate the employment by either party shall be one month notice or one month’s pay in lieu. This is contained in Part III, Paragraphs 2(d) ii) and 16 of the exhibit. The termination of the claimant’s employment was decided on 17th January 2013 and he was to be given one month notice of termination, which the defendant now say Exhibit D4 is that notice. Since this court finds that the claimant did not receive it, the implication is that the claimant was not given notice. The condition of service requires payment of one month salary in lieu of notice. Exhibit D4 indicates the claimant was to be paid some sums upon the termination of his employment among which is one month salary in lieu of notice. The defendant has not shown that the sums have been paid to the claimant. This is even more so that since the claimant has not received the letter, it is likely that he did not know he was to collect the sums. I hold that the claimant is entitled to be paid the one month salary in lieu of notice and all other terminal entitlements. The claimant also claimed from the defendant the sum of N277,500.00 being medical expenses incurred by him as a result of injuries sustained in the course of carrying out his duties as an employee of the Defendant and another N90,000,000.00 being damages for permanent injury sustained by him in the course of his employment. See reliefs (d) and (e). In proving these claims, the claimant testified that on 18th September 2012, he was transferred from Owerri office to Orlu depot and by that by this transfer, the defendant was supposed to make arrangement for his accommodation at Orlu but because the defendant had not done so, he had to shuttle to work to and from Orlu. While returning to Owerri from Orlu on 28th September 2012, he was attacked by armed robbers and he sustained injuries in the process. The claimant said he informed the defendant and he was treated at FMC Owerri but the defendant has refused to settle his medical bills, which amounted to N277,500.00. It is also the claimant’s evidence that he was registered with Hygeia HMO when he was in Maiduguri but the defendant never made any arrangement for health care provider for him in Imo state and he was never informed of any arrangement with any health care provider in Imo State. On its part, the defendant denied knowledge of the claimant’s injury and liability for the treatment and compensation. DW1 said the defendant has medical arrangement for its staffs who are all insured and all medical treatment and expenditure are managed by the medical insurance providers. He also said the defendant has HMO’s that manages the health of staff but there is no medical record or medical bill from the claimant’s HMO to the defendant. The claimant claims the sum of N277,500.00 from the defendant as the sum he expended on his treatment. He tendered the medical receipt from FMC Owerri, Exhibit C, showing the sum of N277,500.00. It is his evidence in chief that the defendant has refused to settle the bill. In order to resolve the issue whether or not the defendant is liable to refund the claimant’s medical bill, this court will have recourse to the defendant’s condition of service. Paragraph 22 of part III in Exhibit B provides- “Subject to the exceptions and restrictions listed below, the company will provide free medical attention for all its employees by medical officers retained or designated by the company for the purpose. When treatment in hospital is recommended by a medical officer retained or designated by the company, the company will pay for the cost thereof. the company reserves the right not to pay for any medical treatment necessitated by or arising from the employees own neglect, fault, or indiscretion or in cases where the company’s written consent had not been first sought and obtained. Exceptions and restrictions: The company will not under any circumstances pay the costs incurred by its employees in respect of any of the following: (a) maternity (b) surgical operation, provided that in special cases involving surgical operations, reference should be made to the plant manager or the Director of Human Resources for a decision whether or not the company should bear the cost. (c) dental or optical treatment, (d) treatment of chronic diseases.” From this provision, the only instances where the defendant will pay for medical treatment of its staff are as follows- i. Where treatment in hospital is recommended by a medical officer retained or designated by the company. ii. Where the treatment is not necessitated by or arising from the employees own neglect, fault, or indiscretion. iii. Where the company’s written consent had been first sought and obtained. It is the defendant’s case that it does not handle the treatment of its staff directly but through the HMO’s retained by it. In his further evidence, the claimant said the defendant enrolled him with Hygeia HMO when he was in Maiduguri and this enabled him to be treated at Borno Medical Clinic whenever he is indisposed. He said that on his transfer to Imo State however, the defendant never made any arrangement for health care provider for him in Imo state and he was never informed of any arrangement with any health care provider in Imo State. This evidence goes to show that the claimant agrees with the fact that the defendant’s medical responsibilities to its staff are handled by HMO’s retained by it. The claimant however contradicted himself during cross examination when, with respect to his allegation that the defendant did not make arrangement for health care provider for him in Imo state, said: “I know about Hygeia”. “I know Dr. Perry, he is in charge of Hygeia in Owerri plant. I told him of my health condition through my HOD. He called me on phone and asked me to meet him at FMC”. “The bills of NBC staff at Owerri are settled by Hygeia. The bill I attached ought to be settled by Hygeia. I passed the Bill to Dr. Perry”. From his evidence in cross examination, it is obvious that the claimant lied in his deposition when he said no HMO provision was made for him in Imo State. He enrolled with Hygeia at Maiduguri and they have the same HMO at Owerri plant in Imo State where he said he was treated at the FMC. He even knows Dr. Perry to be the one in charge of Hygeia in Owerri plant. The claimant also said he submitted his medical bill to Dr. Perry. The question here is if Hygeia was not his HMO, why did he submit the bill to Dr. Perry? The answer is simple. The claimant knew that Hygeia was his HMO at Imo State. Having been registered with the said Hygeia as his HMO in the defendant’s employment, the claimant was expected, by the condition of service, to access medical treatment through the HMO if he was to make the defendant liable to pay for the treatment. The claimant went to the hospital by himself and was admitted and treated without the recommendation of his HMO. Although the claimant said in paragraph 15 of his initial deposition that he informed the defendant of the incidence and he was advised to seek medical attention, he however did not show any “written consent” of the defendant first sought and obtained before he went to the FMC Owerri for treatment. I find that the claimant has not made out a case for the payment of his medical expenses by the defendant. The claim for medical bill, that is relief (d), is hereby refused. The averments of the claimant in paragraphs 8, 9 and 10 of his statement of facts suggested that the cause of the armed robbery incidence was the failure of the defendant to make arrangement for his accommodation at Orlu. In proof of these averments, the claimant said in his evidence that he was transferred from Owerri to Orlu on 18th September 2012 but because the defendant was yet to provide him with the means and facility to settle down at Orlu as required in the condition of service, he had to leave from Owerri to Orlu and from. He was returning to Owerri from Orlu on 28/9/2012 when armed robbers attacked him. What the claimant is saying in essence is that the circumstances which involved him in the incidence and the injury he sustained therefrom were a result of the defendant’s default in keeping to the terms of the condition of service, hence, his claim damages for personal injury. The claimant has also said the injury was sustained in the course of his employment as he was returning from work on the fateful day. The responsibility of the defendant when a staff is transferred is contained in Paragraph 15 of part III in exhibit B. It provides thus: “Except where transfer is made at employee’s request, an employee who is permanently transferred by management from one location/town to another will receive a special single payment equal to his two months basic salary, plus N5000 as resettlement grant. The company will also transport the employee and provide him with accommodation at the new station or pay in lieu of accommodation at the company’s prevailing rate for a period not exceeding one month…” This condition of service in Exhibit B requires the defendant to pay 2 months basic salary to a transferred employee in addition to accommodation for one month or one month payment in lieu of accommodation. Question now is: Did the defendant comply with the requirement of the condition of service when it transferred the claimant to Orlu on 18/9/2012? The memo with which the claimant was informed of his transfer was put in evidence by the claimant and it was marked Exhibit F. In the exhibit, dated 18th September 2012, the claimant was informed of his re-assignment as store keeper to Orlu depot with immediate effect and it contained a table indicating sums of payments to the claimant pursuant to the transfer. The sums include 2 months basic salary, resettlement grant and accommodation in the sums of N65,043.44, N6000.00 and N150,000.00 respectively. Now, the claimant said he received the transfer memo since on 18/9/2012 but because the defendant had not made arrangements for his accommodation at Orlu, he had to shuttle to work to and from Orlu. I have observed that Exhibit F merely indicated sums to be paid to the claimant. It is not evidence of payment nor is there any indication on the face of the exhibit that the sums were paid to the claimant. I didn’t hear the defendant say anywhere in its defence that it paid the sums in Exhibit F to the claimant before the material time of the armed robbery incident. It is obvious from the claimant’s evidence that he was constrained to go from Owerri to Orlu on daily basis because the defendant had not paid him the sum for his accommodation and settlement at Orlu consequent upon his transfer. It was this situation foisted on the claimant by the defendant that caused the claimant’s encounter with armed robbers on 28th September 2012 while returning to Owerri from work. That incidence has permanently taken away one of the claimant’s fingers. From the evidence, I find that the injury resulted remotely from the defendant’s default. The defendant cannot therefore be excused from the injury suffered by the claimant. I therefore hold that he is entitled to an award of compensation and damages as contemplated by Section 19(d) of the NIC Act 2006, premised on the loss of one of the Claimant’s fingers. The claimant sought the sum of N90,000,000.00 (Ninety Million Naira) for the injury. Only a finger was lost. Although he is entitled to compensation for the loss of his finger, this court considers the sum claimed as being rather unrealistic, considering that the missing finger does not prevent the claimant from using the hand as a whole. The effect of the lost finger to the productivity of the hand does not necessarily justify the sum of N90,000,000.00 claimed by the Claimant. From my assessment, the sum of N500,000.00 will be adequate compensation to the claimant. In the final result, reliefs a, b, c and d have not been proved and they are accordingly dismissed. As for relief e, I award the sum of N500,000.00 to the claimant as compensation for the loss of a finger. I have observed earlier in this judgment that the claimant is entitled to be paid one month’s salary in lieu of notice as well as other terminal benefits. For the avoidance of doubt, it is hereby ordered as follows: a. The Defendant is hereby ordered to pay to the claimant, one month’s salary in lieu of notice as well as all his other terminal benefits and entitlements resulting from the termination of his employment, including the sums contained in Exhibit F. b. The sum of N500,000.00 (Five Hundred Thousand Naira) only, is hereby awarded to the Claimant as compensation for the loss of a finger. This is in line with the provision of Section 19 (d) of the NIC Act 2006. c. The orders made in (a) and (b) above shall be paid to the Claimant within 30 days from the date of this judgment; failure of which it begins to attract interest at the rate of 10% per annum. This is in line with Order 21 Rule 4 of the NIC Rules 2007. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge