Download PDF
REPRESENTATION Abali O. Abali, for the claimant. L. C. Ohineme, for the defendant. JUDGMENT The claimant had taken a complaint dated and filed on 5th April 2012 against the defendants praying for the following reliefs – (a) An order of the Court directing the 1st defendant to pay the claimant the sum of Forty-five Thousand naira (N45, 000.00) being his salary for the month of July 2011. (b) An order of the Court directing the 1st defendant to pay the claimant another sum of Forty-Five Thousand Naira (N45, 000.00) being his salary in lieu of notice; ALTERNATIVELY An order directing the 1st defendant to continue to pay to the claimant his monthly salary of Forty-Five Thousand Naira (N45,000.00) from August 2011 until the indefinite suspension from work imposed on the claimant by the defendants is lifted. (c) An order of the Court restraining the defendants from denying the claimant access to the office of the 1st defendant for the purpose of removing his personal belongings still locked up therein since July 2011. The statement of facts/claims dated 4th April 2012 has an additional relief, to wit: (d) And for such further or other orders as the Court may deem fit to make in the circumstance. Accompanying the complaint are the statement of facts/claims, list of witnesses, list of documents to be relied upon at the trial and copies of the documents (Exhibits A, B, C, D and E). The claimant’s witness statement on oath was filed much later on 16th July 2012. The defendants reacted by filing their memorandum of appearance, joint statement of defence and counterclaim, list of witness(es), defendants’ witness written statement on oath, list of documents to be relied upon at the trial and copies of the documents (Exhibits DW1, DW2, DW3, DW4, DW5, DW6, DW7). In their counterclaim, the defendants/counterclaimants prayed for – 1) An order of the Court mandating the claimant/defendant to immediately return the defendants/counterclaimants’ property including but not limited to the staff’s identity card and such other property of the defendants/counterclaimants he went away without the defendants/counterclaimants’ prior permission. 2) An order of the Court restraining the claimant/respondent from further damaging the corporate image of the defendants/counterclaimants. 3) An order of the Court directing the claimant/defendant to tender written apology to the defendants/counterclaimants for his libellous act. 4) Cost of N200,000.00 (Two Hundred Thousand Naira) only with interest at 21% on the said sum from judgment until it is fully liquidated. The claimant did not react to the statement of defence and counterclaim. At the hearing of the case, the claimant testified on his own behalf as CW, while Mr. Bakare Adeniyi, the Administrative Officer of the 1st defendant, testified for the defendants as DW. At the close of hearing, parties filed written addresses starting with the defendants. The defendants’ written address is dated and filed on 27th May 2013; that of the claimant is dated 16th June 2013 but filed on 18th June 2013; and the defendants’ reply on points of law is dated 26th June 2013 but filed on 27th June 2013. The case of the claimant from his statement of facts/claim and sworn deposition is that he was employed by the 1st defendant as a Human Resources Consultant with the designation of Assistant Associate with effect from 1st March 2011. The letter of employment is admitted and marked Exhibit A. The claimant was issued with a staff manual by the 1st defendant which contained the rules and regulations governing his employment with the 1st defendant. The said staff manual is admitted and marked Exhibit B. According to the claimant, his total remuneration was Five Hundred and Forty Thousand Naira (N540, 000.00) per annum or Forty-Five Thousand Naira (N45,000.00) per month. He said the 1st defendant was not paying his salary regularly as and when due and that he was always writing Memos to the 2nd defendant begging for his salary to be paid long after the end of the month. The claimant deposed that on Thursday 21st July 2011, he woke up in the morning and came under severe bout of headache and was unable to rise from the bed. He called the 1st defendant’s Administrative Officer and informed him of his condition and that he would not be able to make it to work because he was going to see a physician and begged that the information be passed to the 2nd defendant whom he allegedly could not reach on phone immediately. He also deposed that he was placed on drip and was still too weak to go to work and he also called the 1st defendant’s Administrative Officer to report same and begged to be allowed to resume work on Monday 25th July 2011. On the said 25th July 2011, he reported to work and was told that the 2nd defendant left a standing instruction that the claimant should not be allowed to resume work until the 2nd defendant directed otherwise. According to him, he waited at the reception, despite the advice of the Administrative Officer that he should go home, to see and hear directly from the 2nd defendant himself. That when the 2nd defendant eventually came at about 11.37 a.m., he went to meet with him but was ordered out of the office with a warning never to come within the vicinity of the 1st defendant office until further notice. The claimant went on that later that day at about 5pm, Mr. Adeniyi Bakare, the 1st defendant’s Administrative Officer, phoned and asked him to check his electronic mail (email) box for a letter from the office. That he opened his email box and found a letter titled “LETTER OF INDEFINITE SUSPENSION” dated same day. The claimant continued that after waiting till August 2011 without being recalled to work and without being paid any salary, he wrote to the defendants through his solicitor, Abali O. Abali. Esq., demanding the payment of salary for the month of July 2011 which he (the claimant) delivered personally to the 2nd defendant in his office. That the 2nd defendant after reading same, threw it back at him and telling him to go to hell. That he was again walked out of the 2nd defendant’s office. To the claimant, the Staff Handbook given to him by the defendants when he was employed does not provide for indefinite suspension as one of the sanctions against staff misconduct; and that the letter of indefinite suspension did not suspend his salary and so he is entitled to salaries from July 2011 till he is recalled. The claimant went on that in their own evidence led by one Mr. Adeniyi Bakare, the Administrative Manager of the 1st defendant, the defendants admitted they issued the claimant with the letter of employment (Exhibit A). They also admitted that the Staff Manual (Exhibit B) emanated from their office although they said the claimant was not authorized to have it. That the defendants again admitted that they sent the purported letter of indefinite suspension dated 25th July 2011 to the claimant. They claimed that the claimant’s appointment was terminated on the 31st July 2011 vide a letter dated 19th October 2011 which they tendered in evidence and was marked as Exhibit DW7. They also admitted that they did not pay the claimant his salary for the months of July, August, September and October 2011 respectively and that they did not serve the claimant one month’s notice in lieu before the purported termination. The case of the defendants is that the claimant had been in the 1st defendant’s employment and had resigned twice but was employed again on compassionate ground in February 2011. The defendants denied ever issuing any staff manual to the claimant as the 1st defendant embarked on an extensive re-structuring and rebranding exercise of the management system and the Handbook was printed as part of that exercise and had not been issued to any staff nor signed for. They stated that the claimant, premeditating this suit, had surreptitiously smuggled the said Staff Handbook out of the office without it being recorded by the defendants’ secretary nor duly stamped by the 2nd defendant. The defendants pleaded and relied on the one that was operational at the time the claimant was in the employment of the 1st defendant. They categorically denied ever being informed of any health challenge by the claimant and stated that those allegations are false. They further stated that the claimant was issued with the letter of indefinite suspension owing to his outright non-performance and owing to wilful disobedience of lawful instruction. It was stated further that the claimant only reported for work on ten (10) days throughout the month of July 2011. In addition, the defendants denied the illness alleged by the claimant and stated in response that he absented himself from work without any notification whatsoever and his conduct led to the termination of his employment vide a letter dated 19th October 2011. The defendants further denied any liability to the claimant’s claims and vehemently stated that the claimant had no personal effects whatsoever in the 1st defendant’s office and urged that they be dismissed. And relying on the same facts pleaded and to which evidence was proffered, the defendants urged that the reliefs of the counterclaim be granted. The defendants then raised the following issues for the determination of the Court – 1. As a preliminary point, whether this Court can assume or ought to have assumed jurisdiction to entertain this case on the strength of the complaint commencing this suit. 2. Further to the above, the following issues were raised in addition or in the alternative to the above: a) Whether the claimant is entitled to the grant of the reliefs sought in the complaint and statement of facts/claim. b) Whether the defendants/counterclaimants are entitled to the grant of the counterclaims. Regarding issue 1 i.e. whether this Court can assume or ought to have assumed jurisdiction to entertain this case on the strength of the complaint commencing this suit, the defendants contended that in the course of preparing this final address, it was discovered that the complaint commencing this suit was incompetent ab initio. They, therefore, submitted that this Court has no jurisdiction to entertain this suit. To the defendants, it is trite that before a court can entertain any matter or suit, it must satisfy itself that it has the requisite jurisdiction to hear same i.e. all the conditions for entertaining same had been complied with. To that extent, jurisdiction is a threshold issue, referring to Madukolu v. Nkemdilim [1962] 1 All NLR 587 at 595; [1962] 2 SCNLR 341, which inert alia held that a criterion for determining jurisdiction is that the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. To the defendants, it is trite law that an originating process must be endorsed and signed by the party who is suing or, where he sues by a legal practitioner, by that legal practitioner entitled to so practice by the fact of his enrolment, citing sections 2(1) and 24 of the Legal Practitioners Act. Thus, that every process not issued by the party must be issued by a legal practitioner for it to be valid. Not even the issuance in the name of a law firm is permitted, referring to Okafor v. Nweke [2007] 3 SC (Pt. 11) 55. The defendants went on that the present complaint upon which this suit stands was not issued and or signed by any person known to law or by any legal practitioner so entitled to practice by the aforesaid provisions of the Legal Practitioners Act. This, to the defendants, makes the originating process defective. First, that the provisions of the National Industrial Court Rules 2007 are clear and absolutely free from any shred of ambiguity. By Order 4 Rule 4(1) and (2), the address of the party suing in person or that of the legal practitioner shall be stated. The implication is that where same has no address for service, it shall not be accepted for filing, rrefrring to Order 4 Rule 5. This simply implies incompetence. It is the submission of the defendants that even where it is filed, such a filing does not cure the defect. Importantly, that Rule 4(3) emphatically states that an originating process (a complaint) must be signed by the claimant or his or her legal practitioner where he sues through a legal practitioner. The importance of properly endorsing the complaint by signing same is equally emphasized by Order 6 Rule 1(2). That failure to comply with these mandatory provisions is incurably fatal. To the defendants, it must be stressed that the operation word in the aforesaid provisions is “shall” which is a word of command, citing Agip (Nig.) Ltd v. Agip Petroli International & ors [2010] Vol. 181 LRCN 119 at 131. That the Rules of this Court have a specimen Form 1 for anybody wanting to commence an action which provides for the basic content thereof. In its wisdom, it specifically provided a section for the appropriate mandatory endorsement as to who issued it, which is omitted in the complaint commencing the instant case. That this is not a mere irregularity that can be glossed over by the parties or the Court but one going to the root of this matter. Obviously, that this defect, without more, makes the complaint, indeed this suit, incompetent and consequently robs this Court jurisdiction. That aside, that these Rules are not designed for fun, but to be obeyed. Once they are in place, they must be adhered to and not contravened or ignored, referring to Abia Transport Corporation & ors v. Quorun Consortium Ltd [2009] Vol. 172 LRCN 134 at 137. The defendants further submitted that the non-signing of a document makes its authorship and authority doubtful, citing Nwancho v. Elem [2004] FWLR (Pt. 225) 107. That an unsigned document has no efficacy in law, referring to Omega Bank (Nig.) Plc v. OBC Ltd [2005] FWlR (Pt. 249) 1964 at 1994. Needless to say, that such an unsigned document is worthless and void, citing A-G, Abia State v. Agbaranya [1999] 6 NWLR (Pt. 607) 362 at 371. Being void, nothing placed on it can stand. Based on the above, the defendants submitted that this Court has no jurisdiction to entertain this matter, urging that this issue be resolved in the defendants’ favour and the suit dismissed or struck out on this basis. On the first of issue 2 i.e. whether the claimant is entitled to the grant of the reliefs sought in the complaint and statement of facts/claim. The defendants contended that the law regarding burden and standard of proof is firmly established in our jurisprudence. Thus, by sections 131, 132 and 133 of the Evidence Act 2011, whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts he asserts shall prove that those facts exist. The defendants referred the Court to G & T Investment Ltd v. Witt & Bush Ltd [2011] 8 NWLR (Pt. 1250) 500 and Iyere v. BFFM Ltd [2001] FWLR (Pt. 37) 1166. Generally, that the burden of proof in this matter as to the claimant’s claims rests with him and same he is to discharge on the balance of probabilities or preponderance of evidence, referring to section 134 and Agala v. Egwere [2010] (Pt. 532) 1609. Consequently, that he will succeed on the strength of the case he was able to make out and not on the weakness of the defence. To the defendants, the pertinent question becomes whether the claimant has proved the facts he alleged in his statement of facts/claim. That one of the claimant’s claims was his entitlement to Forty-Five Thousand Naira (N45,000.00) being his salary for July 2011. However, that the defendants pleaded and proved that it was only ten (10) days the claimant reported for work throughout the said month and actually disappeared after he signed in on 21st July 2011, the last of the days he so did. That fact was not challenged at all. It is trite that a worker is not entitled to payment for hours he never worked, especially when he was not on any official assignment. That the facts before this Court show that he was never on any official assignment on the said days, but on a frolic of his own. He further claimed that he was sick and placed on drip and could not make it to work on 21st and 22nd July 2011. However, under cross-examination, he said he could not remember if he was at work on the said 21st July 2011. Again, despite claiming that he had read the Staff Handbook purportedly given to him, he admitted too that he had not tendered any medical report both to the 1st defendant and in this Court when the Handbook he heavily relies on, at clause 4.3.3, makes it mandatory in the case of absence on alleged ill-health. By the said clause, absence from work is to reflect on the worker’s salary (deducted there from) as in the claimant’s case. Also, the claimant never led any evidence to show that he worked for the said month. The defendants, therefore, submitted that assuming without conceding that the claimant is entitled to any payment, it will only be for the nine (9) days which are the days he actually worked. The defendants went on that the claimant’s second relief sought is the payment of Forty-Five Thousand Naira (N45,000.00) salary in lieu of notice. That by this prayer, the claimant unambiguously admits the knowledge of the termination as proved by the defence witness, Bakare Adeniyi, though he attempted to feign ignorance of same. At worst, he has treated the employment as terminated. It is the submission of the defendants that the claimant is not entitled to that sum. That it was the poor attitude of the claimant and disloyalty that led to his termination. In any event, that by section 11(9) of the Labour Act Cap L1 LFN 2004, in the calculation of payment in lieu of notice, only that part of the wages which the worker receives in money, exclusive of overtime and other allowances, shall be taken into account. Inferably, what the claimant is entitled to is his basic salary. Thus, by Exhibit A, his annual basic salary is Two Hundred and Ten Thousand Naira (N210,000.00) and, when divided by the twelve months, Seventeen Thousand, Five Hundred Naira (N17,500.00). The other sums payable being allowances. The defendants continued that the alternative prayer becomes academic in the light of the grant of the first. In dwelling a little on the facts purported to be in support of that alternative, the claimant alleged that though suspended, he is entitled to payment of salary. His claims were wholly anchored on the said Handbook he claimed to have thoroughly studied. Exhibit DW4 (the Handbook that was operational at the material time) shows on the section for penalty/sanction that suspension in the 1st defendant is without pay. Equally, Exhibit B relied on by the claimant makes the same provision in clause 9.3. Interestingly, no particular form or duration of suspension is provided therein. Consequently, there was no irregularity in the suspension as same was duly approved. The Handbook, no doubt, contains the body of contract between parties and is thus binding on all, including the claimant who claims to have studied same, accepted it and places reliance on it. The law is settled that parties are bound by their agreement, referring to Larmie v. Data Processing Maintenance& Services (DPM) Ltd [2005] 12 SC (Pt. 1) 93 at 103 and Baba v. Nigeria Civil Aviation Centre, Zaria [1991] 5 NWLR (Pt. 192) 388. Therefore, it is the submission of the defendants that as far as the suspension lasted, the claimant was not entitled to any payment. This is in line with common sense. If it was not so, what would be the essence of suspending a worker for gross misconduct when he will still get paid for the period he is to serve the suspension. That allowed, everyone will only pray to be suspended so that he will get paid without working. On relief (c), the defendants submitted that no iota of proof was led in support thereof. Even though the averments were strongly denied, the claimant led no evidence to prove he had any property in the office of the 1st defendant. This is confirmed by his failure to specifically plead the items and proffer evidence thereon. That claim is merely speculative and, at best, exists only in the claimant’s imagination. Having not proved any entitlement to that relief, the defendants urged the Court to discountenance and accordingly dismiss same. To the defendants then, the claims of the claimant are frivolous and cannot be granted as currently constituted, urging the Court to so hold. On the second of issue 2 i.e. whether the defendants/counterclaimants are entitled to the grant of the counterclaim, the defendants contended that the claimant/defendant to counterclaim never deemed it fit to respond or react to the counterclaim against him. Impliedly, that same was admitted. Even the evidence led in support of same was not challenged. That it is trite that an unchallenged averment is deemed admitted, referring to Lemezie v. Onuaguluchi [1995] 12 SCNJ 120 and Arisons Trading & Engineering Company Ltd v. The Military Governor of Ogun State & ors [2009] LPELR-SC.209/1999; [2009] 15 NWLR (Pt. 1163) 26. More so, when the evidence led in supported of same is not challenged by the claimant. That the defendants/counterclaimants’ reliefs were clearly spelt out and evidence led in support thereof credible. The standard required by the law is balance of probabilities. This, the defendants submitted, was duly satisfied. In conclusion, the defendants contended that based on the arguments canvassed above, this Court has no jurisdiction to entertain this matter in the first place. That where, though doubted, this Court refuses to decline jurisdiction, the claimant is not entitled to his claims. Conversely, that the defendants have proved their entitlement to the counterclaim. The defendants then urged the Court to strike out or dismiss the claimant’s case and enter judgment in favour of the defendants/counterclaimants as per the counterclaim. In reaction, the claimant raised only one issue for the determination of the Court, namely, whether or not the Court can, on the balance of probability, grant the reliefs sought by the claimant based on the evidence before it. But in determining this sole issue, the claimant raised two questions: was the claimant’s employment with the 1st defendant wrongly terminated; and if the claimant’s employment was wrongly terminated what remedies are available to the claimant? On whether the claimant’s employment was wrongly terminated, the claimant submitted that it has been established in the case of NITEL Plc v. Ocholi [2001] 10 NWLR (Pt. 720) at page 193 para. 5, that when an employee complains that his employment has been wrongly terminated, he has the onus to – (a) Place before the Court the terms and conditions of the contract of employment; and (b) Prove in what manner the said terms were breached by the employer. That in the present case, Exhibit A, the claimant’s letter of employment dated February 23, 2011 provides in its paragraph 3 as follows – Please note that your employment shall be confirmed after a probation period of six months from the date of this letter. During this period of probation your employment can be terminated by either party based on non-satisfaction or where the agreed targets are not met. One month notice would however be requested for any disengagement either before or after confirmation. That in spite of the above provisions in the claimant’s letter of employment, no one month notice was served on him as admitted by the defendants during cross-examination. Further, that the 1st defendant’s letter of indefinite suspension dated 25th July 2011 purportedly suspended the claimant from work indefinitely. That a careful perusal of Exhibit B, the 1st defendant’s Staff Manual issued to the claimant particularly clause 9 at pages 31 – 33 dealing with sanctions, shows that there is no provision for indefinite suspension as a sanction against a Staff. Again clause 3.8 at page 12 of the same Exhibit B (Staff Manual) which provides for “probation period”, states that – New staffs are subject to a probation period of minimum six months after the completion of their induction programme. At the expiry of this probation period, the staff performance is evaluated. Employment will be confirmed subject to a satisfactory performance appraisal. Employment may, however, be terminated at this stage: that is at the end of the appraisal by the firm if the staff performance is significantly below expectation. During this period, the firm or the staff may terminate the staff’s services subject to a notice period of one month or one month income in lieu of notice. To the claimant, in spite of the above provisions in Exhibit B, the evidence before the Court shows that the defendants neither served the claimant one month notice nor one month income in lieu of notice before purportedly terminating his appointment. Turning to Exhibit DW7, which the defendants claim is the letter that purportedly terminated the appointment of the claimant, the said letter is dated 19th October 2011 yet the termination took effect from 31st July 2011. That assuming without conceding that Exhibit DW7 was ever served on the claimant, the termination is clearly improper. This is because it has been held in the case of Abenga v. BSJSC [2006] 14 NWLR (Pt. 1000) at page 612 para. 1, that – A decision by an employer to dismiss an employee takes effect from the date of the decision to dismiss or a later date. Therefore an employer cannot dismiss an employee with retrospective effect. In the instant case, the appellant was served with a letter dated 28th April, 1997 dismissing him from service with effect from the date of his suspension, that is, 6th February 1997. In the circumstance, his dismissal was with retrospective effect which was improper. The claimant continued that having shown from the foregoing argument that the claimant was neither served a one month notice nor paid one month salary in lieu of notice contrary to the provisions of his letter of employment and staff manual given to him by the 1st defendant; and having also shown that his purported indefinite suspension is not a sanction recognised by the said staff manual and that the purported termination of this appointment with retrospective effect is improper, the claimant then submitted that the claimant has established a clear case of wrongful termination of his appointment by the defendants, urging the Court to so hold. Regarding the remedies available to the claimant for wrongful termination of his employment, the claimant contended that the remedy for wrongful termination of employment is damages. As held in the case of Sea Trucks (Nig.) Ltd v. Pyne [1996] 6 NWLR (Pt. 607) at page 523 para. 7 – The remedy of an employee who had been dismissed or terminated wrongfully is an action for damages. The normal measure of damages is the amount the employee would have earned under the contract for the period the employer could lawfully determine it. That in the present case, the claimant is entitled to his salaries for the months of July, August, September and October 2011 during which he was not paid and the defendants admitted they didn’t pay the claimant for those months too. In addition to the four months salaries (i.e. July – October 2011), that the claimant is also entitled to one month’s salary in lieu of notice. As held in the case of NITEL Plc v. Ocholi (supra) at page 194 at para. 8 – In case of wrongfully termination of employment, apart from the salary in lieu of notice, the Plaintiff would be paid other legitimate entitlements due to him at the time the employment was brought to an end. Accordingly, the claimant submitted that he is entitled to the alternative reliefs sought in his statement of claim and writ of summons which are his salaries for the months of July, August, September and October 2011 in addition to one month’s salary in lieu of notice since the defendants’ letter of termination was issued on 19th October 2011 and cannot take a retrospective effect, urging the Court to so hold. In conclusion, the claimant contended that he has shown clearly from his evidence before the Court that his appointment with the 1st defendant was wrongly terminated. That he has also shown from his argument that he deserves to be paid damages by the 1st defendant for the wrongful termination of his appointment. He then urged the Court “to grant the reliefs sought by the Defendant”. In their reply on points of law, the defendants noted that the claimant ignored many a strong issue raised by the defendants such as the non-response to issue of incompetence of suit. That where issues are not challenged by the other side, they are deemed admitted, referring to Oluyori Bottling Industries Ltd v. UBN Plc [2009] 7 WRN 64 at 83 and Okongwu v. NNPC [1989] 7 SCNJ 106; [1989] 4 NWLR (Pt. 115) 296 where it was held that where a material point canvassed in the appellant’s brief is not countered in the respondent’s brief, the point is deemed to have been conceded to the appellant. Regarding the issue of the entitlement of the claimant, the defendants asserted that it is trite, as held in the cases cited by the by the claimant’s counsel, that what a claimant is entitled to for unlawful termination of employment is damages, which is salary in lieu of notice. As submitted earlier, by section 11(9) of the Labour Act Cap. L1 LFN 2004, in the calculation of payment in lieu of notice, only that part of the wages which the worker receives in money, exclusive of overtime and other allowances, shall be taken into account. Inferably, that what the claimant is entitled to is his basic salary, exclusive of the allowances. Therefore, by Exhibit A, his monthly basic salary is Seventeen Thousand, Five Hundred Naira (N17,500.00). He is not entitled to any sum beyond that sum as salary in lieu of notice. The defendants went on that while they concede that a claimant would be paid any other legitimate entitlement due him aside the salary in lieu of notice, where that is applicable, that it is thus inferable from the dictum in the case NITEL v. Ocholi that where there is no such entitlement, it is only the sum in lieu of notice that the claimant would be entitled to. It is on record that the claimant only reported to work on ten (10) days in the month of July 2011 and that was not challenged. Even if he would be entitled to any payment, which is not conceded, it is only for those ten days. In further support of this position is the provision of section 11(8) of the Labour Act which states that – If an employer gives notice to terminate the contract of employment of a worker who has been continuously employed for three months or more, the employer shall not be liable under this section to make any payment in respect of a period during which the worker is absent from work with the leave of the employer granted at the request of the worker. It is the submission of the defendants that if the law relieves the employer of liability from any payment where there is approval of employee’s absence at the request of the employee, it cannot make the 1st defendant liable to pay the claimant salary for the times he failed to show up for work, with or without the defendants’ approval. Again, that the law is settled that parties are bound by their agreement, citing Larmie v. Data Processing Maintenance & Services (OPM) Ltd [2005] 12 SC (Pt. 1) 93 at 103 and Baba v. Nigeria Civil Aviation Centre, Zaria [1991] 5 NWLR (Pt. 192) 388. That it is settled that claimant was duly suspended and by virtue of the Handbooks relied on by the parties, which is binding in law between the parties, suspension is without pay and as long as it lasted, the claimant is not entitled to any pay for the period 25th July to 19th October 2011. The defendants then submitted that the claimant has seen the incompetence of his originating complaint which was the reason for his failure to address the point raised. That it is incurable and robs this Court of jurisdiction to entertain this suit in the first place. In conclusion, the defendants submitted that by virtue of the law and circumstances of this case the claimant is not entitled to his claims as contained in the statement of claim. I heard learned counsel for the parties and carefully went through their processes and written submissions. Before addressing the merit of the case, I need to resolve the issue of jurisdiction raised by the defendants. The argument of the defendants is that the complaint in the instant case does not conform to the specimen as per Form 1 under the Rules of this Court. That in the specimen, provision is made for disclosing who issued the complaint. Additionally, that the complaint was not signed and so is incompetent. For these reasons, the defendants submitted that this Court has no jurisdiction over the instant case. In the first place, a closer look at the specimen reveals that only the Registrar of the Court before whom the complaint was taken that is required to sign the complaint. There is no provision in the specimen complaint for the signature of a legal practitioner as the defendants seem to think. Secondly, the requirement for the disclosure of the legal practitioner who issued the complaint has been met in the other processes comprising the originating processes i.e. the statement of facts/claim, the list of witnesses and the list of documents. Order 1 Rule 3(2) of the NIC Rules 2007 defines originating process to mean “a complaint or any other court processes by which a suit is initiated”. By Order 3 Rule 1, any action for determination by the Court shall be commenced by way of complaint, which complaint shall be in Form 1 with such modifications or variations as circumstances may require. That the complaint shall conform to the specimen but may be modified or varied as the circumstance may require means the requirement of Order 3 Rule 1 is not as absolute as the defendants seem to think. In any event, under Order 3 Rule 4 other processes such as the statement of facts establishing the cause of action, copies of every document to be relied on at the trial and list of witnesses to be called together make up the originating processes in an action before this Court. These processes were all signed by the counsel representing the claimant. It is in this wise that Order 4 Rule 4 in making provision for originating process (note that it talks of originating process, not just complaint) to indicate the claimant’s or legal practitioner’s address for service states as follows – (1) A claimant suing in person shall state on the originating process his or her residential or business address as his or her address for service. (2) Where a claimant sues through a Legal Practitioner the Legal Practitioner shall state on the originating process the chamber’s address as the address for service. So I do not see what injustice has been caused the defendants in terms of the originating processes in the instant case, when they all disclose the counsel to the claimant, his address, signature and above all, the claims of the claimant that the defendants are to meet. In any case, by the authorities, the statement of claim generally overrides the writ of summons (complaint in our case). The law is that a statement of claim supersedes the writ of summons. Hence if a relief is claimed in the writ of summons but not in the statement of claim, it shall be deemed to have been abandoned. However, a relief endorsed in the statement of claim which is not in the writ subsists. See generally Ngillari v. NICON [1998] 8 NWLR (Pt. 560) 1 at 18, Lewis & Peat (NRI) Ltd v. Akhimien [1976] 7 SC 157, Akintola v. Solano [1986] 2 NWLR (Pt. 24) 598, Otapo v. Sunmonu [1987] 2 NWLR (Pt. 58) 587, Ajao v. Alao [1986] 5 NWLR (Pt. 45) 802, Osafile v. Odi [1994] 2 NWLR (Pt. 325) 125, Ogunola v. Eiyekole [1990] 4 NWLR (Pt. 146) 632, Oseni v. Dawodu [1994] 4 NWLR (Pt. 339) 390, NNPC v. Sele [2004] 5 NWLR (Pt. 866) 379 and Ambassador D. C. B. Nwanna v. National Intelligence Agency & ors unreported Suit No. NICN/ABJ/123/2011 the judgment of which was delivered on December 16, 2013. Furthermore, Order 1 Rule 1(3) enjoins that the Rules of this Court “shall apply to all proceedings including part-heard causes and matters in respect of steps to be further taken in such causes and matters for the attainment of a just, efficient and speedy dispensation of justice”. Section 12 of the NIC Act 2006 permits this Court not to be rigid, formal or bound by procedure. And by Order 5 Rule 3, this Court may direct a departure from the Rules where the interest of justice so requires. The essence of this Court is doing justice. On the whole, therefore, I do not see any merit in the objection of the defendants as to the competence of the complaint and hence the jurisdiction of this Court to hear and determine the instant case. I hold that the complaint in this suit is competent and that this Court has jurisdiction to determine the case at hand. Having resolved the issue of the competence of the complaint and hence the jurisdiction of this Court, I now turn to the merit of the case. In doing this, I need to reiterate the inadmissibility of the list of some names variously dated as can be found at pages 49 – 61 of the case file. When the defendants first sought to have this list admitted as the 1st defendant’s workers’ attendance Register, the Court declined as there was nothing on it to show that the list is a Register. At the Court’s sitting of 13th November 2013, the Court had considered a motion by the defendants to bring in an additional document, which additional document turned out to be the list of names already talked of; only that this time it was titled, “CANAAN PARTNERS STAFF ATTENDANCE REGISTER FOR JULY, 2011” and the words “CANAAN PARTNERS” in ink were stamped on each page of the list (see pages 160 – 172 of the case file). Given that this document sought to be brought in by the defendants was initially frontloaded and rejected by the Court on the ground that there was no nexus between the document and the defendants for it to be admissible for the purpose intended, what the defendants merely did was to go back to their office, title the document and stamp it with the company’s rubber stamp. The Court found this to be offensive to section 83 of the Evidence Act 2011 and so declined to admit it in evidence. The defendants’ motion accordingly lacked merit and so was struck out. This means that the purported Staff Attendance Register for July 2011 remains inadmissible for purposes of this judgment. I now turn to the merit of the claimant’s claims; and the issue for determination is the simple question whether the claimant has proved his case. Relief (a) is for “an order of the Court directing the 1st defendant to pay the claimant the sum of Forty-five Thousand naira (N45, 000.00) being his salary for the month of July 2011”. The argument of the defendants is that the claimant absconded from work and so is not entitled to be paid for the month of July 2011. That even if the claimant is so entitled, the claim for N45,000 as salary for July is outlandish. It is to explain his absence from work that the claimant deposed in his sworn deposition that on Thursday 21st July 2011, he woke up in the morning and came under severe bout of headache and was unable to rise from the bed. He called the 1st defendant’s Administrative Officer, Mr. Adeniyi Bakare, and informed him of his condition and that he would not be able to make it to work because he was going to see a physician and begged that the information be passed to the 2nd defendant whom he allegedly could not reach on phone immediately. He also deposed that he was placed on drip and was still too weak to go to work and he also called the 1st defendant’s Administrative Officer to report same and begged to be allowed to resume work on Monday 25th July 2011. Now, there is no medical report whatsoever before this Court authenticating that the claimant was sick and hospitalised. This much the claimant himself acknowledged under cross-examination. In fact, under cross-examination, the claimant acknowledged that he cannot even remember whether he reported to work on 21st July 2011; neither could he remember the number of days he worked in July 2011. All he could remember (still under cross-examination) is that he took leave in that month to go to his former school to clear some things. Even at this, there is no evidence before the Court authenticating the assertion that he took leave from the defendants in order to be away from work. Exhibit C is dated 19/07/2011 and is a memo to the Managing Partner from the claimant wherein the claimant was asking for the payment of his 40% balance of his salary for the month of June 2011. This request, as per the minute on the memo, was not granted. Not only is this 40% balance of June salary not part of the claims of the claimant in this case, the request for it is coming just two days before the claimant fell sick and was hospitalised. This is the same claimant who would under cross-examination testify that he cannot remember the actual number of days he worked in July 2011; and all that he knows is that he took leave in that month to go to his former school to clear some things. I do not believe that the claimant was away from work with the prior permission of his employers. I am of the firm belief that the claimant was actually on a frolic of his own; and I so find and hold. DW under cross-examination acknowledged that the claimant was not paid his salary for the months of July, August, September and October 2011; and under re-examination, DW gave the reason for not paying the claimant his salary for August, September and October 2011 as the claimant’s failure to work for those months hence the termination of his employment. I earlier found that the claimant was on a frolic of his own. Clause 3.12 of Exhibit B makes provision as to absence from duty without permission and for which the erring staff may be dismissed. Clause 3.13 deals with “abscondment” and provides that where a staff abandons his or her job for 5 working days consecutively without due notification, the defendants reserve the right to terminate the employment without notice. Given my earlier finding that the claimant was away from work without the prior permission of his employers, the provisions of clauses 3.12 and/or 3.13 apply to justify the acts of the defendants against the claimant. This means that the claimant is not entitled to relief (a) as claimed; neither is he entitled to relief (b), which is for “an order of the Court directing the 1st defendant to pay the claimant another sum of Forty-Five Thousand Naira (N45, 000.00) being his salary in lieu of notice”. The claimant complained about him being indefinitely suspended and argued that there is no provision in Exhibit B that permits indefinite suspension. Clause 9.3 of Exhibit B deals with suspension and provides that – On receiving several warnings or queries, or when dismissal is being considered, or if the alleged misconduct is sufficiently serious, the staff may be suspended from work without pay. Suspension is to be approved by the Managing Partner. This provision does not use the phrase “indefinite suspension”. It is for this reason that the claimant argued that Exhibit B does not contemplate or make provision for indefinite suspension. However, a careful reading of clause 9.3 will reveal that although it did not use the phrase “indefinite suspension”, it can import that in meaning and application. Clause 9.3 may not have used the phrase “indefinite suspension”, yet it did not circumscribe, limit or restrict the period of the suspension either. In essence, clause 9.3 incorporates both an indefinite and a limited suspension. An employer generally has the right to discipline an erring staff. See Shell Pet. Dev. Co. (Nig.) Ltd v. Omu [1998] 9 NWLR (Pt. 567) 672 and NEPA v. Olagunju [2005] 3 NWLR (Pt. 913) 602. By ACB Ltd v. Ufondu [1997] 10 NWLR (Pt. 523) 169 CA, a person unlawfully suspended from work can seek redress in the Court and claim his full salary. The English cases of Hanley v. Pease & Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653, however, held that employers cannot suspend without pay where there is no express or contractual right to do so. The rationale is that in suspending an employee without pay, the employer has taken it up upon itself to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. In the instant case, clause 9.3 of Exhibit B permits suspension without pay. This means that the suspension of the claimant without pay by the defendants is legal and hence valid; and I so find and hold. Shell Petroleum Dev. Co. Nig. Ltd v. Emehuru [2007] 5 NWLR (Pt. 1027) 347 went on to hold that where an employee is placed on suspension, he is placed on hold; he lives day by day in anticipation of either being recalled or being laid off. He is not at liberty to utilize his time elsewhere or as he desires until after closing hours. The claimant in the instant case is accordingly not entitled to the alternative prayer of relief (b), which is for “an order directing the 1st defendant to continue to pay to the claimant his monthly salary of Forty-Five Thousand Naira (N45,000.00) from August 2011 until the indefinite suspension from work imposed on the claimant by the defendants is lifted”. Regarding relief (c), which is for “an order of the Court restraining the defendants from denying the claimant access to the office of the 1st defendant for the purpose of removing his personal belongings still locked up therein since July 2011”, there is no evidence before the Court showing what the “personal belongings” of the claimant are and for which this Court should grant the restraining order sought for by the claimant. The claim for relief (c) accordingly fails and so is dismissed. This leaves out the counterclaim of the defendants. The facts upon which the counterclaim is based were not pleaded as such by the defendants. Nothing is pleaded about the property of the defendants in the possession of the claimant; nothing is pleaded about the claimant damaging the corporate image of the defendants; and nothing is pleaded regarding any libellous act of the claimant against the defendants. All the defendants did in their joint statement of defence and counterclaim is to state that they repeat and adopt paragraphs 1 – 10 of the statement of defence and incorporate same regarding their counterclaim. Now, nothing in the said paragraphs 1 – 10 can be said to relate to the reliefs claimed by way of counterclaim. And in terms of evidence, there is no proof before the Court as to the properties of the defendants that the claimant went away with except the mention of identity card (there is, however, no proof that the claimant was given any identity card). There is no proof as to how and what the claimant did to damage the corporate image of the defendants. And there is no proof of the libellous act of the claimant against the defendants – even if there is, this Court has no jurisdiction over defamation. By Agbo v. CBN [1996] 10 NWLR (Pt. 478) 370 CA, an employee cannot rely on wrongful termination of appointment as cause of action to clear his name for his future, among other purposes. His recourse in an appropriate case may be in an action for defamation. A fortiori, the converse would be the case where an employer seeks to clear its name in a termination of employment case (as is presently the case). What all of this means is that the failure of the defendants to plead the facts justifying the counterclaim presupposes that they cannot lead evidence in that regard; and even if evidence is led, it is of no consequence – and I so find and hold. The only proof in favour of the counterclaim given by the defendants is that the claimant did not react or respond to the counterclaim; so the claimant must be deemed to have admitted the counterclaim. Even if the claimant did not react to the counterclaim, this, however, does not mean that the defendants are entitled to an automatic judgment. The defendants are not absolved from the minimal evidential rule, which is to the effect that a claimant (or counterclaimant in our case) cannot assume that he is entitled to automatic judgment just because the other party did not adduce evidence or file a written address before the trial court as held in Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69 and Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247. See also the decisions of this Court in AG, Osun State v. NLC (Osun State Council) & 2 ors unreported Suit No. NICN/LA/275/2012 the judgment of which was delivered on December 19, 2012 and Mr. Joel Adewumi v. Bureau of Public Enterprises (BPE) & 2 ors unreported Suit No. NICN/IB/18/2012 the judgment of which was delivered on December 16, 2013. The defendants have not succeeded in discharging the minimal evidential rule; and I so find and hold. This means that the counterclaim of the defendants fails and so is accordingly dismissed. On the whole, neither the claims of the claimant nor the counterclaim of the defendants succeed. They are accordingly dismissed. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip