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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice F. I. Kola-Olalere - Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Date: February 23, 2012 SUIT NO. NIC/57/2008 BETWEEN Lasisi Gbadegesin - Claimant AND Wema Bank Plc - Defendant REPRESENTATION Femi Falana, with him are O. K. Salawu, Augustine Audu and Tolu Agbona, for the claimant. Prof. Taiwo Oshipitan (SAN), with him are Mrs. Bola Salako, C. Ahmadu and Miss. Tolu Osunsan, for the defendant. JUDGMENT The claimant commenced this action by complaint on September 16, 2008 claiming against the defendant: a) A declaration that the purported indefinite suspension of the claimant contained in the defendant’s letter of 5th September, 2008 is wrongful, null and void and of no effect whatsoever. b) An order setting aside the said purported suspension of the claimant and reinstating him as a bona fide staff of the defendant. c) An order directing the defendant to pay the outstanding salaries and allowances of the claimant forthwith. d) An order of perpetual injunction restraining the defendant whether by its agents, privies and servants from acting on the contents of the said letter of suspension on the claimant in any manner whatsoever and howsoever. Also filed together with the claimant’s complaint are his statement of facts, list of witnesses, list of, as well as, the documents to be relied on. On October 30, 2008, the defendant raised a preliminary objection, which was disposed off in a considered ruling delivered on April 2, 2009. After the Court’s ruling, the defendant, on June 17, 2009, filed its Memorandum of Appearance, Statement of Defense, list of witnesses and list of documents. The defendant indicated in its list of documents that it would not frontload any document. The claimant again filed a reply to the defendant’s statement of defense on January 6, 2010 together with two additional documents the claimant intended to rely on. At the trial only the claimant testified for himself. His testimony is that before his suspension he was the Business Manager of Wema Bank, Bodija Branch, Ibadan and that he worked for 19 years with the Bank. On September 2, 2008 he got a mail through the internet, which was also copied to his Regional Manager that he should resume in Lagos on September 3, 2008 as the Head of Human Resources of the Bank. The letter was signed by Mr. Adebisi Omoyeni, the Group Managing Director (GMD) of Wema Bank, who took over from Mr. John Aboh that served as Ag. GMD. Before Mr. Aboh left in August 2008, he sent a memo to all staff that he will be leaving and Mr. Omoyeni will succeed him and that the staff should corporate with Mr. Omoyeni. The claimant continued that he started his career in the bank as an officer in the Registrar’s Department before he was transferred to Human Resources Dept where he worked for 8 years. He was given a letter of Appointment together with the Terms and Conditions of employment as contained in the Collective Agreement when he joined the bank. On September 4, 2008 while at work in Lagos, the claimant heard that Mr. Omoyeni was again removed as GMD. That same day the claimant went back to his former branch in Bodija, Ibadan. On September 5, 2008 he got a suspension letter containing 26 other names that they should proceed on an indefinite suspension without pay for allegedly being involved in the crisis of September 2, 2008 in Lagos. The collective agreement given to him was that of Employers’ Association of Banks Insurance and Allied Institutions and All Employees of unionized Banks and that the defendant is a unionized bank. The agreement applies to all categories of staff in a unionized bank. When he was the Industrial Relations Officer for Wema Bank for a period of 8 years, all cases involving any staff in any category were decided in line with the Collective Agreement. In the Collective Agreement, if a staff is alleged to have committed professional misconduct, to allow for proper investigation, he will be placed on 6 months suspension with pay of half the basic salary plus full allowances. The bank applied the Collective Agreement to discipline management staff. To the claimant, since the bank did not follow the appropriate disciplinary procedure by placing him on indefinite suspension without pay, he prayed the court to declare his suspension illegal and order the defendant to pay him all his entitlements. Under cross-examination, the claimant testified that the collective agreement was given to him together with his letter of employment on November 2, 1990 while the collective agreement before the court is dated June 1, 2005. The agreement was made 15 years after he joined the defendant. He admitted that the collective agreement he frontloaded is not certified. The claimant also agreed that on the frontloaded agreement there are two pages 7, one of which is a signature page while the other is not. Also in terms of numbering of this Agreement pages 1 – 18 are retyped while pages 19 – 54 are handwritten. The claimant did not know the person that did the handwritten numbering. He also said he did not give his counsel the agreement in question. Despite these facts, he still confirmed that the agreement is a valid document. At that point, a certified copy of the 2005 agreement was handed over to the witness by the defendant’s counsel to confirm whether it is same with that in the court’s file which he did. However, the court pointed out that even in relation to the certified copy of the 2005 agreement, page 10 is hand written. That notwithstanding, the court admitted in evidence the certified copy of the 2005 agreement and marked it as Exhibit 1. The court also directed that a copy of it should be made available to the claimant’s counsel. Again, the court observed that Exhibit 1 has 52 pages; and it has only one page 7 and that there is no signature page in it. The claimant continued his testimony under cross-examination by stating that for a suspended employee to report at work daily and sign the register, the suspension letter must categorically state so and that his letter of suspension did not state as such. Therefore, since 2008 when he was suspended he did not report to any designated staff of the bank. The letter he said he downloaded from the internet on September 3, 2008 is not before the court. He stated that he was not aware that the Ag. MD was locked up on September 2, 2008. Under re-examination, the claimant stated that the 2005 agreement and the agreement with which he was employed are similar in words. After the testimony of the claimant, the defendant’s counsel informed the court that the defendant will not be calling any witness. Therefore, the court gave parties directions as to the filing of their written addresses. The claimant filed his written address on September 6, 2011 while the defendant filed its on December 20, 2011. The claimant filed his reply on points of law on January 19, 2012. On January 24, 2012 when this case came up for adoption of written addresses, counsel to the two parties adopted their written addresses and re-affirmed their agreement that the decision in this case shall abide in the sister cases of NIC/60/2008, NIC/63/2008, NIC/65/2008, NIC/67/2008 and NIC/69/2008. Counsel to the claimant, Mr. Femi Falana, also promised to supply additional authorities to the court on this case. By a letter issued same day from the chambers of counsel to the claimant and signed by Audu Augustine Esq. Mr. Falana made good his promise. He sent photocopies of two decided authorities to the court and as well referred the court to section 12(2)(b) of the National Industrial Court Act 2006. Counsel to the defendant was copied with this letter. The cases sent to the court are: 1. Bernard Ojeifo Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1. 2. Dr. Adesegun Banjo v. University of Ibadan unreported Suit No. I/123/77, the ruling of which was delivered on 16th May 1977. On February 10, 2012, the court got a letter from the chambers of counsel to the defendant in respect of this case subtitled, ‘Additional Authorities’. It was signed by one Chrys Ahmadu for Prof. Taiwo Osipitan & Co. This process listed four decided authorities and a book the counsel wanted the court to consider regarding the power of an employer under the common law to suspend an employee indefinitely without pay. The authorities are: Wallwork v. Fielding & ors [1922] 2 KB 66 at 74 – 75; Bird v. British Celanese Ltd [1945] 1 KB 336 at 341; University of Calabar v. Esiaga [1997] 4 NWLR (Pt. 502) 719 at 739 – 740; Longe v. First Bank Plc [2010] 6 NWLR (Pt. 1189) 1 at 60 and Prof. Chioma Kanu Agomo – Nigerian Employment and Labour Relations Law and Practice (Concept Publications Limited), 2011. In the written address of the claimant, his counsel stated by way of introduction that the claimant frontloaded the following documents, 1. Internal Memo of the defendant dated August 27, 2008. 2. Internal Memo of the defendant dated September 5, 2008. 3. The procedural and Main Collective agreement and filed 2 additional documents: a) detail collective agreement between the Nigeria Employers Association of Bank Insurance and Allied Institution and the Association of Senior Staff of Banks Insurance and Financial Institution and b) Letter dated 19th June 2001. The claimant’s counsel framed the following issues for determination by this court: i. Whether the indefinite suspension of the claimant without pay is unlawful, having regard to the provision of Article 4(iii)(a – b) of the Procedural and Main Collective Agreement between the Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) and The Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI). ii. Whether in the absence of any specific disciplinary procedure for Management Staff in the defendant employment, the disciplinary procedure adopted in the collective agreement is applicable to Management staff in the defendant employment. iii. Whether the claimant is entitled to the reliefs being sought. Arguing the first issue of whether the indefinite suspension of the claimant without pay is lawful, having regard to the provision of Article 4 (iii)(a – b) of the Procedural and Main Collective Agreement between Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) and The Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI), learned counsel stated that the two parties to the referred agreement are specifically mentioned in Part C of the Trade Unions Act Cap. T14 LFN 2004. That by virtue of their recognition by the Act, they are competent bodies to enter into agreement on behalf of their members. He continued that the parties before the court respectively belong to the association and union that entered into this agreement. He submitted that, whether a collective agreement is enforceable and forms part of the terms and conditions of employment is a question of fact, referring to Ladipo v. Chevron Nigeria Ltd [2005] 13 WRN 55. Counsel to the claimant reproduced Part II section 1 of the Collective Agreement which the claimant had frontloaded, and which states that – This agreement shall apply to all categories of unionized Senior Staff engaged in the various member companies of the Association as defined in Article 1 of the Agreement. Existing employees and all future employees, on entering the service of member establishments, shall each be provided with a printed copy of this agreement by the employer. Learned counsel went on that, in compliance with the above provision, copies of the Collective Agreement were given to all employees of the defendant as part of the terms and conditions of their employment, according to the testimony of the claimant, which was not challenged or controverted by the defendant. As a matter of fact the defendant tendered a copy of the collective agreement. He, therefore, urged the court to deem same as true and to rely on such evidence in arriving at its decision, citing PTF v. I. F. M. S. Ltd [2002] 16 NWLR (Pt.794) 586. Counsel submitted further that the collective agreement is enforceable since it was adopted as part of the terms of employment, referring to Nigeria Deposit Insurance Corporation v. Mr. Obende [2002] FWLR (Pt. 116) 92 and Friday U. Abalagu v. The Shell Petroleum Development Company of Nigeria Ltd [2003] FWLR (Pt. 171) 1627. Hence, an individual employee can enforce same against the employer, and so, urged the court to hold that the collective agreement is enforceable between the parties. Counsel to the claimant maintained that by Article 4(iii)(a and b) of the Collective Agreement, if an employee is suspected of dishonesty or any other serious misconduct, he will be suspended from duty for a period of six months or more to enable the employer investigate the allegation. During his suspension, the employee shall be paid half basic salary, full transport, housing and utility allowances. He shall also be entitled to usual medical treatment. He contended that instead of complying with this provision, the defendant suspended the claimant indefinitely without pay; therefore, the defendant’s act is unlawful, illegal, null and void, referring to D. A. (Nig.) ALEP Ltd v. Oluwadare [2007] 7 NWLR (Pt. 1033) 336 and urged the court to so hold. Issue two is whether in the absence of any other specific disciplinary procedure for Management Staff in the defendant employment, the disciplinary procedure adopted in the collective agreement is applicable to Management staff in the defendant employment. Counsel to the claimant reiterated that although, by Article 1 Part 1 of the Collective Agreement, members of the Management staff are exempted from the collective agreement but that the cliamant testified that it is the same disciplinary procedure already implemented on a senior staff that is adopted to discipline a Management staff and that the defendant did not challenge this piece of evidence. Counsel argued that where the terms and conditions of a contract of service could not be determined, it could be implied from the conduct of the parties, referring to Mears v. Safeguard Security Ltd [1981] 1CR 409. Learned counsel added that it will amount to an unfair labour practice for an employee who while in a lower grade was covered by a disciplinary procedure that had his right and benefit protected to have such rights and benefits wiped off simply because of his promotion to a high grade which was a result of hardwork, loyalty and dedication to duty, citing Rubber Products Workers Union of Nigeria v. Odutola Tyre Soles Company Ltd [1989 – 1990] N. I. C. R. 89 in support. To counsel, it is certainly an unfair labour practice to argue or contend that a Management staff can be disciplined in a demeaning manner less protective of his rights than he was used to when he was a member of the senior staff. He urged the court to use the disciplinary procedure, which was implemented on senior staff on the defendant. Issue three is whether the claimant is entitled to the reliefs being sought. Counsel to the claimant submitted that having held that the claimant’s suspension is illegal, null and void and, therefore, the claimant’s employment has not been determined, the claimant is still deemed an employee of the defendant. And so, the claimant is entitled to be reinstated and to be paid all his salaries and remunerations. Counsel urged the court to hold as such, referring to Imoloame v. WAEC [1992] 9 NWLR (Pt. 265) 303. Counsel to the defendant raised the following as issues for determination by this court: i. Whether the said claimant can successfully prove his case by relying on the Collective Agreement when: (a). The Agreement tendered by him is neither signed nor certified; (b). He is not a party to the Agreement; (c). the life span of the Agreement had expired at the time the cause of action (if any) arose. (d). The Agreement is expressly made inapplicable to the claimant who is a Management Staff of the Defendant. ii. Whether the defendant has the right to suspend the claimant from work. iii. Whether the claimant has proved his entitlement to the reliefs sought by him in the claims. Submitting on issue 1, which he tagged, “admissibility and utility of collective agreement”, counsel to the defendant maintained that at the time of his suspension, the claimant was a Management Staff and that the whole of the case of the claimant is centered around the provisions of the Collective Agreement entered into between the Nigeria Employers Association of Banks, Insurance and Allied Institution and the Association of Senior Staff of Banks, Insurance and Financial Institutions. He went on that while the claimant frontloaded a copy of the said agreement that was neither signed nor certified, the defendant tendered the Certified Copy of the Collective Agreement as Exhibit 1. He continued that the Agreement has a life span of 2 years effective from April 1, 2005. The learned SAN submitted that the Collective Agreement which the claimant relied on is a public document in the sense that a copy of it is kept in the Office of Minister of Labour and Productivity. Therefore, its photocopy is inadmissible but only its Certified True Copy, citing in support the cases of C.R.P.D. & Co. Ltd. v. Obongha [2000] 8 NWLR (Pt. 670) 751 at 765; Minister of Lands, Western Nigeria v. Dr. Nnamdi Azikiwe [1969] 1 All NLR 49 at 59; and Edico Nig. Ltd. v. UBA Plc [2001] 4 NWLR (Pt. 689) 492 at 504. He urged the court to reject the collective agreement frontloaded by the claimant. Counsel to the defendant went on that even if the issue of non-certification of the Collective Agreement is resolved in favour of the claimant, the claimant would still fail because the Agreement he tendered has not been duly signed by or on behalf of the defendant. In Concorde Hotel Ltd v. National Union of Hotel and Personnel Services Workers [2007] 9 NLLR (Pt. 23) 1 NIC, it was held that a Collective Agreement that is not authenticated by the parties lacks legal validity. All claims based on it, therefore, automatically fail. Again, in National Union of Hotels & Personal Service Workers v. Whassan Eurest Nig. Ltd [2005] 2 NLLR (Pt. 4) 145 or [2004] DJNIC at pgs. 452 – 453, this court held that the principle of extension of Collective Agreements to non-signatories to it is not yet part of the labour law of Nigeria. In this case, nowhere was it shown that the respondent (defendant) is a signatory to any or both of the Collective Agreement in issue, as to determine against whom the Court’s jurisdiction will apply. To the defendant’s counsel, even if signed and certified, the claimant can still not rely on the agreement because it is not applicable to Management Staff of the defendant. The agreement in question makes it clear that it is only applicable to Senior Staff of Banks. He further submitted that the status of a Collective Agreement is that it is not enforceable by persons who are not parties to them and since the claimant is not a party to the agreement the claimant cannot enforce it, citing Africa Continental Bank Plc v. David O. Nwodika [1996] 4 NWLR (Pt. 443) 470 at 483 G – H, Hohler v. Aston [1920] 2 Ch. 420 at 425 and Beswick v. Beswick [1967] 2 All ER 1197. In addition, counsel to the defendant contended that the collective agreement specifically states that it would last for 2 years effective from 1st April, 2005; meaning that the agreement expired on 31st March, 2007 while the cause of action, namely, the indefinite suspension of the claimant was on September 5, 2008. It then follows that the agreement expired by effluxion of time. After its expiration none of the contracting parties can claim rights and benefits under it. He submitted that the agreement in question is spent and can, therefore, not form the basis of any valid relief. The defense counsel again stated that the claimant argued that the evidence they tendered was unchallenged by the defendant; therefore, they are entitled to judgment. Admittedly, the defendant did not adduce any independent evidence in rebuttal of evidence put forward by the claimant. To counsel to the defendant, that evidence did not prove the various rights being claimed by him. The claimant is, therefore, not entitled to judgment. Hence, the claimant’s claim has failed and should be dismissed, referring to Lasisi A. Abimbola v. Saka Abatan [2001] 9 NWLR (Pt. 717) 66 at 74H. Counsel to the defendant consequently urged that this issue be resolved in favour of the defendant. Counsel to the defendant then argued issues 2 and 3 together which he re-titled, “right to suspend employee and claimant’s entitlement to relief sought”. He argued that in common law, an employer has a right to hire and fire and that either of the parties is at liberty to terminate the contract. He also submitted that in cases of alleged misconduct, the employer can suspend the employee to enable the employer investigate the allegation and determine the next line of action. In support of this argument, he referred to David Olaja v. Kaduna Textile Mills Ltd unreported Case No. NCH/37/69 cited at pages 30 and 465 of the book, Nigerian Labour and Employment Law in Perspective by Oladosu Ogunniyi; 2nd ed. where the court held that – The employment of a person not governed by Labour Law will be governed by Common Law. He also stated that it should be noted that the Labour Act only applies to workers so strictly defined and does not apply to categories of staff regarded as a projection of management, whose employment conditions are taken to be regulated by the common law. Learned SAN consequently submitted that the defendant is entitled to suspend the claimant the very way a University or Higher Institution can suspend its students. The defendant’s counsel maintained that even the collective agreement which the claimant is relying on preserves the right of the defendant to suspend her employees in case of professional misconduct, citing Article 4(3)(a) of the agreement. He continued that by virtue of that article, an employee who has been suspended is obliged to report for work daily for 2 hours and shall sign the attendance register. The claimant has not shown compliance with this provision which he admitted under cross-examination. The declaration sought by the claimant is an equitable relief and he who comes to equity must come with clean hands and that he who seeks equity must do equity. Learned SAN then submitted that a claimant who failed to comply with the provisions of the agreement he is relying upon is not entitled to his reliefs from this court, referring to Ezike v. Egbuaba [2008] 11 NWLR (Pt. 1099) 627 at 658A. The learned counsel argued that the injunction if granted would also amount to a decree of specific performance of the contract of employment. To counsel to the defendant, it is trite that except in cases of employment with statutory flavour, the court does not impose a willing employee on an unwilling employer. That there is no space for specific performance in employment contracts, citing Savnnah Bank (Nig.) Plc v. Fakokun [2002] 1 NWLR (Pt. 749) 544 at 561 – 562. Learned SAN then urged this court to resolve the above issue in favour of the defendant and dismiss this suit. Replying on points of law counsel to the claimant submitted that the claimant is a senior manager and, therefore, not a management staff. He also submitted that the collective agreement is not a public document and so, does not require a certified true copy before it could be admitted. It is indeed an agreement between two private unions brought about for private use or private purpose only. He further submitted that in the case of Shyllon v. University of Ibadan [2007] 1 NWLR (Pt. 1014) 1 a public document was defined as – A document created over a public matter, preserved for the good of public and open for public inspection and use. A public document must be brought into existence and preserved for public use on a public matter, and must be open to public inspection. In other words, for a document to be admissible as a public document, it should not only be available for public inspection, but should have been brought into existence for that purpose. Learned counsel maintained that Exhibit 1, which is the collective agreement, was not created over a public matter and unless a person belongs to the unions that created Exhibit 1 for their own benefit, he cannot take advantage of it. The agreement is not open to the general public for inspection. It is indeed a private document that does not require any certification. He continued that defendant through the claimant tendered the certified copy of the collective agreement in evidence which contain in substance the same provisions as that tendered by the claimant. Hence, this court is bound to consider all the evidence in the proceedings before arriving at its decision, referring to Egwa v. Egwa [2007] 1 NWLR (Pt. 1014) 71 at 91 and Dokubo v. Omoni [1999] 8 NWLR (Pt. 616) 647. Counsel urged the court to apply the collective agreement tendered by the parties. Counsel to the claimant reiterated that the defendant contended that the agreement in question was only for two years starting from 1st April 2005 to 31st March 2007. To him, the defendant failed to avert its mind to the provision of Part iii of Article 1(a and b) of the agreement, which provides that until a new agreement or an amendment to the agreement has been signed and the date of its commencement agreed upon, this present agreement shall remain in force. He continued that the two years expiration of the agreement is predicated upon the parties reaching a new agreement to terminate the one at hand or amend same. Consequently, where no new agreement is reached by the parties the collective agreement before the court shall continue to be in force more so that there is no evidence of such new agreement before the court. Counsel urged the court to discountenance the argument of the defendant on this issue. On the defendant’s argument that it suspended the claimant to enable it investigate the allegation of misconduct leveled against the claimant, the claimant’s counsel maintained that the claimant is not challenging the right of the defendant to suspend him but that the defendant does not have the right to suspend him indefinitely and without pay. He went on that by virtue of Article 4(iii) of the collective agreement, suspension is for an initial period of 6 months with half of the basic salary and full payment of transportation, housing and utility allowance and that the staff suspended shall be entitled to medical treatment. Hence, the indefinite suspension of the claimant is wrongful, illegal, null and void and of no effect whatsoever. Counsel went on that in the internal memo that the claimant frontloaded, through which the claimant was suspended indefinitely without pay, the memo barred the claimant from entering the premises of the defendant. It is, therefore, practically impossible for the claimant to report for duty on daily basis as envisaged in the collective agreement. As a result, the claimant cannot be held responsible for the illegality of the defendant. He urged the court to discountenance the submission of the defendant on this issue and resolve it in favour of the claimant. In addition, learned counsel stated that the contract of employment between the claimant and the defendant has not been determined. So, the claimant is still in the employment of the defendant. Therefore, the issue of imposing a willing employee on an unwilling employer does not arise. He urged the court to discountenance the submission of the defendant on this point as same is misconceived and erroneous in law. Mr. Salawu urged the court to hold that the indefinite suspension of the claimant without pay is contrary to the provision of Article 4(iii) of the collective agreement tendered before the court; so, it is illegal, null and void and of no effect whatsoever or howsoever and that the claimant is entitled to the reliefs sought. Having carefully gone through the processes and submissions of the parties, it is worthy of note that even though the defendant indicated not to frontload any document in its list of document frontloaded, the defendant still tendered Exhibit 1 through the claimant and extensively referred to it in its address. When a defendant elects not to proffer any evidence for its defense, it does not necessarily amount to an admission of the claimant’s case. This only means that such defendant stands and falls by the claimant’s case since it will not have another opportunity for such defense. See James Okpeta v. Nigerdock Nigeria Plc unreported Suit No. NIC/LA/27/2009 delivered on February 9, 2012. This said, we are of the firm view that the following issues are to be resolved by the court in order to adequately determine this matter. 1. Whether the collective Agreement before the court is valid. 2. Whether, on the evidence before the Court, the claimant can benefit from the Collective Agreement. 3. Whether or not the indefinite suspension of the claimant is lawful and whether the claimant is entitled to reinstatement together with his outstanding salaries and allowances in the event that the indefinite suspension is held to be unlawful. In resolving the first issue i.e. whether the collective agreement is valid, we note that the claimant first frontloaded two collective agreements. The first one is unsigned and an incomplete document with several pages missing. The second has a page 7 in the body and runs up to page 9 before its signature page which is also labeled page 7; after which the paging continues at page 10 as the next page. This second document then ends at page 54 but it again has another signature page at page 41. In fact, the paging of this second document from pages 19 – 54 is handwritten. During the trial, the defendant tendered as Exhibit 1 through the claimant its version of the collective agreement. The defendant’s version is not without its problems. First, the version of the defendant is also not signed. Secondly, the said collective agreement is typed on engraved papers with the name, Wema Bank in reverse, at the back of each of the pages. Given that the parties to the collective agreement are supposedly the National body of the Nigeria Employers Association of Banks, Insurance and Allied Institutions and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI), there is no way that an agreement between these two parties will be printed on Wema Bank engraved indentured paper. For all these reasons, we doubt the authenticity and hence validity of the collective agreement in issue. We, therefore, hold that none of the different versions of the collective agreement before us is valid for the purposes of this suit. They are all discountenanced as having no probative and evidential value in this suit. Assuming that the collective agreement were valid, there is the issue of whether or not it is a public document. Section 48 of the Trade Disputes Act Cap. T8 LFN 2004 is apposite and defines collective agreement to mean – Any agreement in writing for the settlement of disputes and relating to terms of employment and physical conditions of work concluded between – a. An employer, a group of employers or one or more organizations representative of employers, on the one hand; and b. One or more trade unions or organizations representing workers, or the duly appointed representative of any body of workers, on the other hand. Section 102 of the Evidence Act 2011 provides that the following documents are public documents – (a) documents forming the official acts or records of the official acts of – (i) the sovereign authority, (ii) official bodies and tribunals, or (iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere: and (b) public records kept in Nigeria of private documents. This means that any document not forming official acts or records of the official act as listed above is not a public document. A collective agreement made between an employer or group of employers on the one hand and a union or group of unions representing employees does not qualify as a public document under the law since the makers of the document are not sovereign authority, official bodies and tribunals or public officers, legislative, judicial and executive of Nigeria or elsewhere. In Part C of the Trade Unions Act Cap. T14 LFN 2004 the two unions that entered into the Collective Agreement before the Court are duly recognized by the law in Nigeria. Consequently, we hold that a copy of the collective agreement before us needs not be certified before it is used in this court because it is a private document in line with the provision of section 103 of the Evidence Act 2011. See also Egwa v. Egwa [2007] 1 NWLR (Pt. 1014) 71 at 91. The next issue to resolve is whether the claimant can take the benefit of the collective agreement. This Court in several cases had held that a party can take the benefit of a collective agreement only when it is a party to it; but as regards individual employees who are members of a union, they can take the benefit only through their unions or if the union is not minded to sue on their behalf, then they must show evidence of membership of the union in question. See Itodo & ors v. Chevron Texaco Nigeria [2005] 2 NLLR (Pt. 5) 200 NIC. In the case at hand, the defendant argued that the claimant is a management staff and so cannot claim the benefit of the collective agreement. In Basil Ositadinma Mbanefo & ors v. JUSUN unreported Suit No. NIC/EN/07/2009 the judgment of which was delivered on June 30, 2011, this Court held that the decision whether or not an employee is a projection of management is one that must be done on the facts and on a case-by-case basis. There is no evidence before us to indicate the job schedule of the claimant in order to ascertain whether or not the claimant is a management staff. Secondly, there is no evidence before us to indicate that the claimant is actually a member of ASSBIFI so as to take the benefit of the collective agreement in issue. In Itodo and Concorde Hotels v. NUHPSW [2007] 9 NLLR (Pt. 23) 1 NIC, this Court emphasized all of this. The evidence before us shows that the claimant, as Business Manager of the defendant, is at least a senior staff in the employment of the defendant. The law is that a senior staff is not an automatic member of his/her union. The senior staff must individually and in writing opt to join the union in question. See CAC v. AUPCTRE [2004] 1 NLLR (Pt. 1) 1 NIC. No evidence has been presented to us to indicate that the claimant is a member of ASSBIFI in order to claim the benefit of the collective agreement in this matter. What all of this means, therefore, is that the collective agreement sought to be relied upon by all the parties cannot be so relied upon in this case. The last issue is whether the indefinite suspension of the claimant is lawful. The claimant has been on suspension since September 5, 2008. The claimant did not frontload his letter of employment for us to determine the nature of his rights in terms of the suspension. However, we must state that an employee should not be kept under suspension indefinitely without initiating and concluding disciplinary proceedings against him as this puts him under undue hardship and makes it impossible for him to seek some other employment. See Mrs. Dayo Buloro v. Nigerian Institute of Public Relations unreported Suit No. NIC/LA/23/2009 the judgment of which was delivered on April 14, 2011. There had been a number of decisions by the Courts on the issue of suspension of employees. For instance, the Court of Appeal in Olafimihan v. Nova Lay-Tech Nig Ltd [1998] 4 NWLR (Pt. 547) 608 read an indefinite suspension without pay with restriction of the employee from entering the premises of the respondent company as a clear intention of the respondent to dispense with the services of the employee in question. But the Supreme Court in Longe v. F.B.N. Plc (supra) held inter alia that: Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. Under the common law, a term entitling the employer to suspend the employment of an employee will not be implied into the contract of employment. It is usually a step taken in the interest of the employer’s business. A reading of the authorities on suspension will reveal that an employee suspended with or without pay, and whether indefinitely or for a period of time, remains an employee in service. To this end, therefore, we hold that the claimant’s employment with the defendant is still valid and subsisting although Olafimihan and Ilodibia v Nigerian Cement Co. [1997] 53 LRCN 2507 suggest that an indefinite suspension may evince the intention of the employer to repudiate the contract of employment. See also pages 163 to 166 of Prof. Chioma Kanu Agumo’s book, Nigerian Employment and Labour Relations Law and Practice (Concept Publications Limited: Lagos), 2011. A global reading of the cases suggest that while an employee on suspension is a subsisting employee in service, courts are to take account of the length of time that the employee is on suspension. Since in the instant case, the suspension of the claimant ran for more than three years, this evinces an intention on the part of the defendant to repudiate the contract of employment of the claimant. Since there is no documents put in evidence to show that there is even a right on the part of the defendant to suspend the claimant whether indefinitely or not, the indefinite suspension of the claimant in this case must be read subject to the right of the claimant to his entitlements, if case law is anything to go by. For present purposes, therefore, we hold that the indefinite suspension of the claimant for this length of time amounts to a repudiation of the contract of employment of the claimant by the defendant but effective only from the date of this judgment. This means that the claimant is entitled to be paid the backlog of his salary and allowances together with all other entitlements that go with repudiation of the employment, less whatever indebtedness the claimant may have to the defendant. For all the reasons stated above, we hereby hold and order as follows: 1. The collective agreement relied upon by the parties in this suit is invalid and so has no probative or evidential value. 2. Even if the collective agreement is valid, there is no evidence before the Court to indicate that the claimant is a projection of management; neither is there any evidence that the claimant is a member of ASSBIFI in order to benefit from the collective agreement. 3. The indefinite suspension meted out on the claimant amounts to repudiation of the contract of employment of the claimant as from the date of this judgment without prejudice to the rights of the claimant. 4. The claimant is accordingly entitled to be paid all his backlog of salary and allowances from the date of the suspension to the date of this judgment together with all entitlements that may arise as a result of the repudiation of his contract of employment less the total indebtedness of the claimant to the defendant, if any. 5. The claimant is to be paid all his entitlements within 30 days from the date of this judgment. By agreement of the parties and their counsel, the judgment in this case hereby abides Suits No. NIC/60/2008, NIC/63/2008. NIC/65/2008, NIC/67/2008 and NIC/69/2008. Judgment is entered accordingly. We make order as to cost. Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice F. I. Kola-Olalere Hon. Justice O. A. Obaseki-Osaghae Judge Judge