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The claimants had commenced this action vide a complaint dated and filed on 30th May 2012 praying for the following reliefs – 1. A declaration that the indefinite suspension of the claimant is unconstitutional, illegal contrary to the rules of natural justice, equity and good conscience and, therefore, null and void and of no effect whatsoever. 2. A declaration that the said indefinite suspension of the claimant was unlawful wrong and done in flagrant breach of the defendant company’s policies and procedures as contained in the UBA Employee Handbook. 3. A declaration that the claimant is still in the employment of the defendant and entitled to all his just entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office. 4. An order setting aside, invalidating and making void the said indefinite suspension of the claimant. 5. An order reinstating the claimant to his employment in the defendant company without any loss of seniority and commensurate entitlements, salaries, allowances, bonuses, emoluments and/or other perquisites of office from the time of his unlawful and inequitable suspension. 6. An order directing the defendant to pay over to the claimant all his just commensurate entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office from the time of his purported indefinite suspension until his full reinstatement and thereafter. 7. An order awarding 35% pre-judgment and 10% post-judgment interest on the claimant’s entitlement, emolument, allowances, salaries, bonuses, etc. 8. An order awarding the sum of N10,000,000 (Ten Million Naira) only as general damages to the claimant for the unlawful, unconstitutional indefinite suspension and the attendant physical, psychological and emotional trauma which the claimant was made to suffer. 9. An order granting any other reliefs that the Court may find the claimant entitled to ex debito justitae. 10. The cost of this avoidable but provoked action. Accompanying the complaint are the statement of facts, written statement on oath, list of witnesses, list of documents and copies of the documents marked at the trial as Exhibits A – H. The defendant entered formal appearance and filed the statement of defence and counterclaim (later amended by order of this Court on 24th September 2013 – by the amendment, the defendant effectively abandoned its counterclaim), list of witnesses, witness statement on oath, defendant’s witness further written statement on oath (the witness on record was later substituted with another by order of this Court on 24th September 2013), list of documents to be relied upon and copies of the documents marked at the trial as Exhibits D1 – D6. The claimant had reacted by filing a reply to the defendant’s statement of defence and defence to counterclaim. At trial, the claimant testified on his behalf as CW, while Adeola Adefila, a Human Resources Business Partner with the defendant’s Regional Office, Ibadan, testified for the defendant as DW. At the close of trial, parties were ordered to file and serve their respective written addresses starting with the defendant. This they did. The defendant’s written address is dated and filed on 25th October 2013, while that of the claimant is dated and filed on 5th December 2013. The defendant’s reply on points of law is undated but filed on 10th January 2014. They adopted these processes and the matter was slated for judgment on 16th April 2014. Subsequently, however, the Honourable President of the Court notified all that Easter vacation for the year 2014 would run from 14th April to 25th April. This meant that the date originally fixed for judgment fell within the vacation period. In order not to fall foul of the 90 day period allowed for delivery of judgments by section 294(1) of the 1999 Constitution, the Court asked that parties be recalled to readopt their written addresses. Counsel in the matter obliged and readopted their written addresses. The matter was then adjourned to today for judgment. The case of the claimant is that he is a staff of the defendant and that he was sometime in September 2009 as the Branch Operation Manager of the defendant placed on suspension pending the conclusion of investigation vide Exhibit D (which is the same with Exhibit D1 tendered by the defendant). That the reason for his suspension was based on his alleged involvement and connivance with Messrs Kabir Abdulazeez and Mudasiru Kolawole Muritala, the ATM custodians at Ilorin 1 Business office, in an ATM fraud of N1.1 million at Ilorin 1 Business office and that he was at Oke-Ode Business unit of the defendant as the Operation Manager as at the time of the alleged ATM fraud. That himself and others appeared before the disciplinary committee of the defendant in Ibadan on the 17th of October 2009 on the alleged involvement in the ATM fraud and that he told the committee that he was innocent of the allegation and that he was told that he would be subsequently contacted. The claimant went further that both Kabir Abdulazeez and Mudasiru Kolawole, the ATM custodians, were found guilty of the allegation and were consequently made to resign from the employment of the defendants. That he waited for the defendant to recall and reinstate him and made several efforts to inquire about his status at the defendant’s bank without any success. That he sent Exhibit E to one Mr. Ilesanmi Owoeye of the defendant to inquire into his status regarding the outcome of the investigation but all to no avail. The claimant continued that he has been on suspension for several months without salaries, allowances or emoluments and that he consequent upon this caused Exhibit F of 15th December 2011, which the defendant replied vide Exhibit G of 30th December 2011. That when the defendant failed to act in accordance with its promise in Exhibit G, the claimant caused his solicitors to write Exhibit H but that the defendant ignored Exhibit H. He concluded that he is still in the employment of the defendant because he is still on suspension since the defendant has not terminated his appointment nor dismissed same, urging the Court to declare his indefinite suspension illegal and unconstitutional and to declare that he is still in the employment of the defendant and thereby entitled to his accrued salaries, allowances emoluments, and perquisites of his office. The case of the defendant is that by a letter of confirmation dated April 2009 the claimant’s employment in the defendant, evidenced by a letter of employment dated 26th November 2009, was confirmed. That sometime in September 2009 the Business Operation Manager (BOM) of the Ilorin 1 Business Office of the defendant sent a report to the Cluster Monitoring Office that a sum of N1,100,000.00 (One Million, One Hundred Thousand Naira) only was stolen from the ATM Machine of that Business Office. Upon questioning and querying, the claimant was indicted and he admitted taking the said money. He was thereafter suspended and dismissed by the defendant upon the recommendation of the defendant’s Disciplinary Committee. The defendant accordingly framed one question for the determination of the Court, namely – Taking into consideration the entire circumstances of this suit, can it be legally and equitably contended that the suspension of the claimant by the defendant is wrongful in law and equity such that the claimant may be entitled to all the reliefs sought before this Court. To the defendant, the only issue submitted for the Court’s determination is the propriety or otherwise of the suspension of the claimant by the defendant. Indeed, that it is obvious that all the reliefs being sought from the Court by the claimant relate to the issue of suspension. Thus for the Court to find for the claimant, it must come to the conclusion that the claimant’s suspension was illegally and inequitably done. That it is a settled principle of law that who he alleges must proof, citing section 131 of the Evidence Act 2011. Thus the question is: what were the allegations of fact pleaded in support of the reliefs being sought from the Court? To the defendant, the principal facts and the most germane facts are facts pleaded in paragraphs 11, 15 – 20 and 27 of the statement of facts. That it is for the claimant to prove his case and not for the defendant to disprove same. In fact, that the failure of the defendant to even lead evidence in defence does not take away the duty of the claimant to prove his case on a balance of probability, citing NEPA v. Inameti [2002] 11 NWLR (Pt. 778) 397 at 425H to 426A. That in the case at hand, the defendant did not only file a statement of defence and necessary documents but the defendant also adduced evidence through its only witness. However, that the position of law in NEPA v. Inameti (supra) makes it mandatory that a claimant should first make out a prima facie case prior to the consideration of a defence. The defendant then asked whether the defendant had put any answer forward, and answered same in the affirmative, citing paragraphs 4(i) – (vi) of the amended statement of defence. The defendant went on to submit that the claimant was not only lawfully suspended but also that he had been lawfully dismissed due to gross misconduct of aiding the fraud perpetrated by the duo of Messrs Kabir Abdulazeez and Mudashiru Kolawole Muritala. The defendant accused him of jeopardizing her interest. The defendant referred the Court to paragraphs 14 – 19 of the claimant’s sworn deposition of 30th May 2012 and argued that it is obvious from his deposition that the claimant stated unequivocally that he did not commit the alleged misconduct hence he ought not to have been suspended. The defendant, however, asked how the claimant fared under cross-examination. That the claimant still reminded of his oath confirmed to the Court that he sent Exhibit D6 to the defendant. That in answering questions under cross-examination, the claimant stated as follows – I know Mrs. Olorundare Biola. She used to be my supervisor. We both interacted when the issue of A.T.M fraud occurred. The claimant was thereafter shown Exhibit D6 and he confirmed that it is the electronic mail between himself and the said Biola. It is, therefore, the submission of the defendant that Exhibit D6 is germane to the issue of whether the claimant was equitably suspended or not. That at the 2nd page, the said Biola Olorundare stated thus – Adekunle, It was gathered that you conspired with the ATM Custodians in benefiting from funds in ATMs. Give full report of your involvement and amount benefitted before you refunded it back. Your response should get back to me latest 11.00am today. The claimant answered thus – A loan processed for me by bank PHB was due for collection as promised by the bank, and a customer is guaranteed for TOD was supposed to clean off with the money. I collected N300,000 and it was regularized immediately I was able to get fund. I know this was contrary to the policy but I thought the money would come in same day for regularization” (emphasis is the defendant’s). To the defendant, it is obvious from Exhibit D6 that the claimant accepted the misconduct leveled against him by the defendant. That in all sincerity, it is very difficult to appreciate the necessity of approaching the Court by the claimant. There is no doubt that the Court is a court of equity and it is settled that he who comes to equity must not only come with clean hands but without blemish. The defendant then asked whether the claimant herein is without blemish. The defendant thought not. The defendant continued that the settled principle of law is that an employer may summarily dismiss an employee who has been found guilty of gross misconduct. In the case at hand the appellant need not be found guilty because he has admitted being guilty. His trial is a mere surplussage, citing Dongtoe v. CSC Plateau State [2001] 9 NWLR (Pt. 717) 132 at 159 D – E, where Karibi Whyte JSC puts the law thus – It cannot be disputed that where there is an admission of the commission of the criminal offences alleged the question of establishing the burden on the accuser to establish the commission of the offence does not arise. Accordingly, the question of violating the rights of the accused is not an issue. It seems to me preposterous to suggest that the administrative body should stay the exercise of its disciplinary jurisdiction over a person who had admitted the commission of criminal offences. The inevitable inference is that criminal prosecution should be pursued thereafter before disciplinary proceedings should be taken. I do not think the provision of the law and effective administration contemplates or admits the exercise of such a circuitous route to the discipline of admitted wrong doings. It is the submission of the defendant that if an employee may be lawfully dismissed on the basis of an admission of guilt, then it will be inequitable to contend that an employee who has admitted an act of gross misconduct cannot be suspended even till eternity. That the appellant was accused of aiding junior officers in the junior officer’s act of stealing. The appellant admitted same to the management of the defendant and equally admitted same before the Court. That this act constitutes a gross misconduct, citing UBN Plc v. Soares [2012] 11 NWLR (Pt. 1312) 530 at 575 D – E. The defendant continued that on the evidence of the claimant alone even without considering the case of the defendant it cannot be said that the case of the claimant succeeds. However, that the defendant equally filed a defence and led evidence, the summary of which is that the claimant aided stealing consequent upon which he was tried and dismissed. There is no dispute about the fact consequent upon which he was tried and dismissed. There is no dispute about the fact that the claimant aided stealing since he admitted same. That the settled principle of law is that an admission needs no further proof, citing section 123 of the Evidence Act 2011, Jolasun v. Bamgboye [2010] 12 SC (Pt. II) 99, Agbanebo v. UBN Plc [2000] 7 NWLR (Pt. 666) 53 at 54 and Ndayako & ors v. Dantoro & ors [2004] 13 NWLR (Pt. 889) 22 B – C. It is also the submission of the defendant that there is no dispute that the claimant was tried by a disciplinary committee of the defendant. Parties are also ad-idem on this point. However, that while the claimant is contending that disciplinary committee failed to come out with a report notwithstanding the fact that he gave evidence, the contention of the defendant is that claimant was not only tried but that he had been conclusively tried such that he had been dismissed. That by Exhibit A4 (i.e. letter of suspension dated 12/9/2009) which was tendered by the claimant himself, the claimant was suspended pending the conclusion of investigation. This is in line with the pleadings of the claimant. He also testified that he was suspended pending investigation by paragraph 14 of his written statement on oath. It is, therefore, the submission of the defendant that there is no doubt that the defendant has the burden of proving that the claimant had been conclusively tried and that he had been dismissed. However, that the duty to prove the said assertions does not arise until the claimant had been able to prove that he was unlawfully suspended as being claimed by him, citing Sanusi v. Ameyogun [1992] 4 NWLR (Pt. 237) 527 at 547 C – F, Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24, Victoria Aduke & anor v. Solomon Aiyelabola [1942] 8 WACA 43, Lawrence Onyekaonwu & ors v. Ekwubiri & ors [1966] 1 All NLR 32 at 35 and Bafunke Johnon & anor v. Akinola Maja & ors [1951] 13 WACA 290 at 292. To the defendant, before it can be called upon to prove that the claimant had been conclusively tried and dismissed he ought to prove that he was wrongfully or unlawfully suspended. That the failure of the claimant to prove that he was wrongfully or unlawfully suspended has ended his case. Thus his case is liable to dismissal even without the consideration of the defendant’s case. Furthermore, that far from the admission of gross misconduct by the claimant which entitles the defendant to either suspend or dismiss him summarily, it is the law that an employer may suspend any of his employee even on a mere suspicion, citing Yusuf v. VON Ltd [1996] 7 NWLR (Pt. 463) 746 at 754 B – D and Lewis v. Heffer & ors [1978] 3 All ER 354 at 364. To the defendant, it is not necessary to even consider the case of the defendant because the claimant has failed to show that his suspension was wrongful or that he was suspended indefinitely such that his suspension may be said to be ad-infinitum because neither has he been able to show that he was suspended without committing any misconduct nor has he been able to show that he was suspended ad-infinitum since on his own evidence he was suspended pending the conclusion of the investigation. However, assuming but in no way conceding that it is necessary to consider the case of the defendant, then the defendant is under a duty to prove that he had been lawfully dismissed since that is the case of the defendant. The defendant in order to prove its case called one witness and tendered Exhibits D3 – D5. The defendant’s Handbook was also tendered on 27th November 2012 as Exhibit E. That there is no doubt that the claimant’s employment falls under the category of employment that does not have any statutory flavor hence he cannot be forced on his employer, referring to Union Bank of Nigeria v. Ogboh [1995] 2 NWLR (Pt. 380) 22 D – G and Longe v. First Bank of Nig. Plc [2010] 6 NWLR (Pt. 1189) 76 – 77 SC. That by Exhibit E, the claimant may be lawfully dismissed for any gross misconduct and the law is settled that an employee may be summarily dismissed for any gross misconduct, citing Co-operative Dev. Bank v. Essien [2001] 4 NWLR (Pt. 104) 479 at 491 A – B. That summary dismissal means a dismissal that may be done without any trial provided that the said gross misconduct has been settled. In the case at hand, that the claimant admitted the gross misconduct in issue; thus right from the date of the said admission, the defendant is entitled to dismiss him summarily. The defendant tendered Exhibits D4 and D5 to show that the claimant had been dismissed from its employment. There is no doubt that Exhibits D4 and D5 were duly signed. There is also no doubt that the persons who signed Exhibits D4 and D5 did not put their name. However, to the defendant, all the law requires for such a document to be authentic is that it must be signed. That in Omega Bank (Nig.) Plc v. OBC Ltd [2005] 8 NWLR (Pt. 928) 574 at 576 E – F Musdapher JSC (as he then was) puts it thus – It is impossible under all the circumstances of this case to take exhibit P.6 as an offer or acceptance of an offer. It is a document not signed nor addressed to the respondent, it is a worthless document which does not have any efficacy in law (emphasis is the defendant’s). Regarding Exhibit D3, that there is no doubt that it was signed by 2 people out of 7 people, the implication of which is that it is doubtful whether the five members that did not sign the said exhibit accepted the recommendation therein that the claimant be dismissed. However, to the defendant, in the peculiar circumstances of this case the failure of the said five members out of seven members to sign Exhibit D3 is of no moment due to the following reasons – 1. Exhibit D3 is a recommendation of a disciplinary committee whose essence is to determine the guilt or otherwise of the claimant, hence it can only make a recommendation. In law, a body that makes recommendation does not have a final say. It is obvious from Exhibit E (i.e. the conditions of service) that with or without the recommendation of the disciplinary panel the claimant may be dismissed by the defendant. Clause 8:5 of Exhibit E provides thus – The Bank may, without notice or the payment of any entitlements, dismiss from its employment any employee found to have committed an act of gross misconduct. In the case at hand, the claimant admitted the gross misconduct that he was alleged to have committed to the defendant and before the Court. In such a situation Exhibit D3 is useless; it is overkill on the part of the defendant. The claimant may be dismissed on his own admission alone. The admission of guilt by the claimant has cured the defect in Exhibit D3, if any, referring to Dongtoe v. CSC Plateau State (supra). Justice is about substance not form, citing Ogboru v. Uduaghan [2012] 2 – 3 SC 66. 2. Since the claimant is not challenging his dismissal but rather his suspension, it is a serious doubt whether the Court can pronounce on the legality or otherwise of his dismissal. The issue submitted for the Court’s determination is suspension and not dismissal. In LUTH & MB v. Adewole [1998] 5 NWLR (Pt. 550) 406 at 419 F – G Acholonu, JCA (as he then was) stated thus – There was no question of wrongful termination of appointment. It was not an issue intended from the onset by the respondent and the court cannot like Saint Nicholas give him something he never asked for as though it is an institution that doles out benefits whether they are in want or not. The court cannot strive to make a case different from the one made by the respondent. It will become the case of a referee so over sympathizing with the cause of one party that it decides to align itself with it oblivious of its impartial position. Our Law Reports are replete with decisions on warnings to the courts not to bend backwards and award or make a new and better case than a party has set down. In Udengunu v. Uzuegbu [2003] 13 NWLR (Pt. 836) 135 at 151 – 152 H – D Uwaifo, JSC puts the law thus: A judgment of the court must demonstrate that the court understood the case before it and elicit an open and full consideration of the issues properly raised by the parties on their pleadings as supported by evidence. The conclusions reached ought to reflect and justify such an exercise: see Polycarp Ojogbue v. Ajie Nnubia [1972] 1 All NLR (Pt. 2) 226 at 231; Kalio v. Woluchem [1985] 1 NWLR (Pt. 4) 610 at 622. Once a court had misapprehended the nature of the case in respect of which it is required to give a dispassionate and rational decision, the chances are that the decision otherwise reached will be perverse. This is because when an adjudicator fails to discern the real question which he is to consider and decide or answer, his reasoning will inevitably be addressed to a collateral matter which is irrelevant, or to an aspect which is beside the point in issue. Such an adjudicator is said to suffer from ignoratio elenchi. A perverse decision of a court can arise in several ways. It could be because the court ignored the facts or evidence; that it misconceived the thrust of the case presented; or took irrelevant matters into account which substantially formed the basis of its decision; or went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or committed various errors that faulted the case beyond redemption. The claimant has not placed the issue of dismissal before the Court. However, the contention of the defendant is that he has been dismissed. The claimant whose case must first be considered did not submit any issue relating to dismissal hence, assuming without conceding that the Court finds that the dismissal ought to be set aside due to the defect in Exhibit D3, since there is no such relief before the Court, something cannot be placed on nothing. Even if the Court holds that the claimant was not properly dismissed, the Court cannot in law give a positive order setting aside the dismissal because there is no such prayer before the Court. 3. It is a settled principle of law that whoever is claiming that a procedure necessary for the attainment of justice has been breached must show that the breach occasioned a miscarriage of justice. Thus the claimant must show that the failure of 5 people to sign Exhibit D3 occasioned a miscarriage from the record. See Odeh v. FRN [2008) All FWLR (Pt. 424) 1590 at 1616 D – E. In the case at hand the failure of five members to sign Exhibit D3 would have ordinarily put a doubt on whether the claimant was guilty or not but the admission of guilt by the claimant has cured the doubt that could have arisen due to the failure of five members to sign. Given the above stated reasons, the defendant reiterated its contention that the failure of five members to sign Exhibit D3 is of no moment. The defendant went on that from the totality of evidence before this Court, it is not in doubt that the claimant, Kabir Abdulazeez and Mudashiru Kolawole Muritala were indicted and appeared on the same day before the Disciplinary Committee. That there is evidence that there was connivance between the three of them as evidenced by Exhibit D3, referring to paragraphs 18 and 19 of the claimant’s statement. The defendant then asked how the claimant found out the status of the other two indicted officers. That if they were indicted together, suspended at the same time, appeared at the disciplinary committee together, found guilty of the gross misconduct together, how come it was only the claimant that did not know his status? Why did the claimant wait for a recall and reinstatement? Did the claimant refuse to accept his dismissal because he was waiting and instead wanted a recall and re-instatement? That these unanswered questions are tugging at the defendant’s mind and show more or less that the claimant is not a witness of truth. The defendant submitted that the claimant’s claim of indefinite suspension is an after-thought and is unfounded. That he was perfectly aware that he was dismissed alongside other officers who were found guilty of the same gross misconduct as he. His evidence in this regard is unreliable and a bunch of lies, urging this Court to so hold, and thus dismiss all his evidence before this Court. The defendant referred the Court to paragraph 26 of the claimant’s written statement on oath; and Exhibit E where the claimant wrote and claimed that his account was treated as an “ex-staff account”. That under cross-examination, the claimant stated thus – Yes my account with the bank is one of the indices that determine my status with the bank. As at the date I wrote Exhibit E, my account was thrown into debit. I did not know what they meant, that was why I sent the mail. To the defendant, the claimant worked with the defendant for two years, and thus will be untruthful to say that he does not know what a staff account in debit means. That he had in fact admitted it in Exhibit E that his account was treated like that of an ex-staff, the reason being that it was in debit. It is laughable that he is denying this same statement he made. That documents speak for themselves. The defendant’s contention is that the claimant’s claim of indefinite suspension holds no water. That he has been unable to put before this Court evidence that he was indefinitely suspended. He is aware that it is only an ex-staff’s account that can only be thrown into debit, why then the claim of indefinite suspension when his account is in debit? That the claimant cannot approbate and reprobate. This Court frowns at such acts, and will not allow such. He cannot speak with both sides of his mouth. The claimant, according to the defendant, failed to put before this Court reliable or credible evidence to support his claim of indefinite suspension, urging this Court to so hold and reject the claimant’s evidence on this point, and dismiss all his claims. On the treatment of inconsistent evidence of a witness, the defendant referred the Court to Henry Nwokearu v. State [2010] 15 NWLR (Pt. 1215) 1 at 12 and Osadim v. Taiwo [2010] 6 NWLR (Pt. 1189) 155 at 162. That it is obvious from the record that claimant is not a witness of truth. That the claimant’s evidence (statement on oath), evidence deduced under cross-examination and exhibits tendered were bedeviled by material inconsistencies. The law is settled that if a witness in his evidence before the Court contradicts his written statement on oath, it is referred to as discrepancy, and if it is material, the witness will not be treated as a witness of truth, citing Mr. CLD Maduabum v. Hon. Chuks Nwosue [2010] 13 NWLR (Pt. 1212) 623 at 631. The defendant went on to spell out these material inconsistencies as follows – By paragraph 17 of the claimant’s written statement on oath, he stated that he informed the committee that he did not connive with the duo of Messrs Kabir Abdulazeez and Mudashiru Kolawole to perpetrate the fraud and he is innocent of the allegation. During cross-examination, the claimant stated thus – When the incidence of the ATM Fraud occurred, mails were exchanged between me and superiors...I confirm that I sent Exhibit D6. That Exhibit D6 consists of the series of e-mails exchanged between the claimant and his superiors dated September 14, 2009. The defendant reproduced it as follows – One Biola T. Olorundare sent – Adekunle, It was gathered that you conspired with the ATM Custodians in benefitting from funds in the ATMs. Give full report of your involvement and amount benefitted before you refunded it back. Your response should get back to me latest 11:00am today. In his response, the claimant wrote – A loan processed for me by Bank PHB was due for collection as promised by the bank, and a customer guaranteed for TOD was supposed to clean off with the money. I collected N300,000.00 and it was regularized immediately I was able to get fund. I know this was contrary to the policy but I thought the money would come in same day for regularization. To the defendant, this issue is simply that of ‘res ipsa loquitur’. That there is a wide gap between ‘I told them I am innocent’ and ‘I collected N300,000... I know it was contrary to policy’. They are two lines that can never meet. That this inconsistency is material and shows that the claimant is not a witness of truth. That the Court may wish to note that these mails were sent before the sitting of the Disciplinary Committee. In summary, the defendant contended that – 1. The claimant’s issue before this Court is the propriety or otherwise of his suspension by the defendant, and he has failed woefully to prove his case before this Court. 2. The defendant’s contention is that the claimant’s suspension and eventual dismissal was lawful and justified, flowing from the powers embedded in the defendant. 3. The claimant admitted committing the alleged gross misconduct both to the defendant, and before this Court, and thus cannot be heard in law and equity to complain of his suspension. The defendant then concluded by urging the Court to dismiss the case of the claimant with substantial cost. The claimant on his part framed three issues for the determination of the Court, namely – 1. Whether the claimant’s employment with the defendant is not subsisting having regards to the fact that his indefinite suspension has not been converted to termination of employment or dismissal. 2. Whether the defendant who has the onus of proof that the claimant’s employment with it has been brought to an end to wit dismissal has not failed woefully to prove same. 3. Whether the claimant is not entitled to all the reliefs claimed against the defendant from this Court. Regarding issue 1, the claimant submitted that an employee does not lose his status as a staff of the employer during the time of his suspension. Thus an employee under suspension does not have the same status with an employee whose employment has been dismissed or terminated. Consequently, an employee remains a staff of his employer as long as that suspension subsists, referring to Mobil Producing Nig. Unltd v. Udo [2009] All FWLR (Pt. 482) 1177 at 1224 – 1227 G – C. That suspension no doubt is a temporary withdrawal or cessation from employment as distinguished from permanent severance that is accompanied by removal, citing Mobil Producing Nig. Unltd v. Udo, supra, at page 1224 F – G and Black’s Law Dictionary, Eighth Edition where suspension is defined as “the temporary withdrawal from employment, as distinguished from permanent severance”. The claimant continued that he was suspended vide Exhibit D, the letter of suspension dated 17th September 2009, and jointly signed on behalf of the defendant by Onaa Aiyudu whose designation is TM, Ind. Rel. & Work Ethics and Ngozi Osindero whose designation is TL, Industrial Relations & Work Ethics. Meanwhile, Exhibit E of 3rd February 2011 emanating from the claimant but sent to one Ilesanmi Owoeye has a very clear and lucid content which shows that the claimant by that letter was asking for his status as a staff of the defendant. That the defendant never denied receipt of this letter and it is clear that the defendant did not reply same. Exhibit F of 15th December 2011 is also a letter from the claimant’s solicitor written to the defendant to ask for the status of the claimant on the premises that the claimant has not received either a letter of termination or that of dismissal from the defendant since 2009 when he has been placed on suspension. Exhibit G of 30th December 2011 was the defendant’s response to the claimant’s solicitor’s letter of 15th December 2011 and the content of the said Exhibit G is also very clear. Paragraph 2 of the said Exhibit G is very clear as it shows that the defendant cannot ascertain the status of the claimant as at then. It is not only that the defendant cannot ascertain the status of the claimant, the letter shows that there was nothing on ground as at then to show that the claimant’s appointment has been terminated or that he has been dismissed from the defendant’s employment. For instance paragraph 2 of the said letter goes thus – Please be informed that the Bank takes seriously complaints of this nature and seeks to address them promptly. We are currently looking into your client’s allegation and we shall revert to you shortly on the outcome of our findings. That it should be noted that the defendant never reverted back to the claimant’s solicitors till date. To the claimant, the witness called by the defendant under cross-examination when asked whether Exhibits D4 and D5 were available as at the time Exhibit G was written could not tell this Court why same was not communicated to the claimant’s solicitor in the defendant’s letter of 30th December 2011 and even after then till the claimant instituted this action against the defendant. That the irresistible conclusion any reasonable person will come to is that Exhibits D4 and D5 were not available as at the time the defendant wrote Exhibit G and that writing of Exhibits D4 and D5 was a mere afterthought on the part of the defendant. Those exhibits are no doubt a mere ruse to cover the inequality meted out to the claimant by the defendant. This is further brought to the fore by the incurable defects in Exhibits D4 and D5, which are – a) The letters unlike all other letters or correspondences of the defendant do not have names of the signatories. Thus the identities of their makers are not known. In fact, the only witness called by the defendant himself could not name the authors of the said purported letters. b) As if this is not enough the said purported letters were addressed to the claimant putting his address as 15, Idofin Compound, Iyamoye Ijumu LGA, Kogi State. It is crystal clear and it was admitted by the defendant’s witness that of all the correspondences sent to the claimant by the defendant, there is/was no one in which his address is put as 15, Idofin Compound, Iyamoye, Ijumu LGA, Kogi State. c) The address put on these exhibits also indicate that such letters were ones meant to be personally delivered, no one has come to this Court to testify that he or she delivered such personally to the claimant. d) To worsen the defendant’s situation, the purported letters, Exhibits D4 and D5, have nothing to show as evidence of delivery or that any person received same on behalf of the claimant or that the claimant himself received same. The claimant then submitted that it is the duty of the defendant and not that of the claimant to prove that the claimant actually received Exhibits D4 and D5, referring to Yadis Nig. Ltd v. GNIC Ltd [2007] All FWLR (Pt. 370) 1348 at 1370 A – C where Onnoghen, JSC had this to say – The above notwithstanding, I hold the view that the issue as to whether a document is received or not is purely an issue of fact to be proved by evidence and that it is the primary duty of the trial court to evaluate evidence, make finding of facts, and apportion probative value thereto and not that of the appellate court to so do particularly where the findings of facts so made by the trial court had not been demonstrated to be perverse. In the instant case, there is concurrent finding of fact to which learned counsel for the appellant also agrees, that there is no signature of the staff who purportedly received the original of exhibit D and affixed the stamp of the respondent to the said exhibit signifying the said receipt on the document, exhibit D. It is on this basis that the courts have held that the appellant has failed to prove the receipt of the original of exhibit D, which finding I find to be supported by the evidence on record and therefore very sound. The claimant, therefore, prayed the Court to hold that his employment with the defendant is still subsisting since there is no evidence to prove that his appointment has either been terminated or that he has been dismissed by the defendant. That the Court should resolve issue 1 in favour of the claimant. On issue 2, the claimant submitted that it has become an established principle that he who asserts the affirmative has the onus of proof in respect of what he asserts affirmatively, referring to Ibrahim v. Ojomo [2004] 4 NWLR (Pt. 862) 89 at 110 D – F and B. A. Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) 624 at 644 A – B. The claimant then referred the Court to paragraphs 9, 10, 11, 12 and 13 of the defendant’s amended statement of defence and argued that all the averments therein are not in doubt affirmative in nature. However, the claimant in his reply to the defendant’s statement of defence and defence to counterclaim by paragraphs 8, 9, 10 11, 12, 13 and 14 denied all the afore-quoted averments of the defendant the denial which places the onus of proof of the said quoted affirmative averments on the defendant. The claimant went on that the defendant despite the facts that it referred to purported letters of 2nd, 8th and 9th December 2009 as media through which the claimant’s dismissal was communicated to him in a bid to discharge this onus has placed before this Court only Exhibits D4 and D5 whose various defects have been analysed while arguing issue 1. That Exhibits D4 and D5 cannot be used as evidence of proof of the fact that the claimant has been dismissed vide service of Exhibits D4 and D5 on the claimant by the defendant in view of the Supreme Court’s decision in the case of Yadis Nig. Ltd v. GNIC Ltd (supra). These exhibits could be best described as after thoughts. That the said exhibits cannot stand in the face of Exhibits E, F and G. This is because if these exhibits had been in existence and had been served on the claimant since the period of the purported dates on them, the defendant would not have had any reason for not informing the claimant or his solicitors when it received Exhibits E and F from the claimant and his solicitors respectively, especially when it was replying the claimant’s solicitor’s letter vide Exhibit G of 30th December 2011. Thus the defendant, despite its claim that the claimant had been served with Exhibits D4 and D5 as at the time it was writing Exhibit G could not disclose this vide the said Exhibit G. The reason for non-disclosure of this could not even be explained by the defendant’s witness. The claimant, therefore, prayed the Court to hold that the defendant has failed woefully to prove that the claimant has been dismissed vide Exhibits D4 and D5 and that same had been duly communicated to the claimant; and that the Court should resolve issue 2 in favour of the claimant. Regarding issue 3, the claimant adopted his arguments of issues 1 and 2 and prayed the Court to apply the principle of ubi jus ibi remedium and grant all the prayers of the claimant. The claimant then submitted that it is not in doubt as could be deciphered from the lone issue formulated by the defendant in its written address that the defendant has admitted that the claimant is still under suspension and that that suspension has not crystalised to either termination of his employment or his dismissal since 2009 till date. The claimant, contrary to the submission of the defendant, contended that his suspension which hitherto was legal before the sitting of the Disciplinary Committee has become an illegal one by failure on the path of the defendant to either terminate, reinstate or dismiss the claimant after the sitting of the said disciplinary committee since 2009 thereby leaving the claimant’s fate hanging. The defendant in paragraph 4.3 of its written address had submitted that the onus of proof rests on the claimant. To the claimant, this submission remains a very good principle while the authority cited to buttress same also remains good authority. However, that the onus to prove depends on what type of assertion a parties in a matter make. Thus where there is an affirmative or positive assertion and negative assertion, then the onus becomes that of the party who asserts affirmatively to prove what he has asserted, citing Ibrahim v. Ojomo and Imonikhe v. UBN (supra). The claimant went that it is crystal clear that the defendant has made an affirmative assertion by virtue of paragraphs 9 – 13 of its amended statement of defence, which are to the effect that the claimant had been given a letter of dismissal which according to the defendant was duly served on the claimant. However, the claimant denied this by virtue of paragraphs 8 – 14 of his reply which amounts to a negative assertion. Therefore, it is the submission of the claimant that the onus to proof that the claimant has been duly dismissed by the defendant is on the defendant, the onus which it tried to discharge vide Exhibits D4 and D5 which have been demonstrated to be ruse and grossly insufficient to sustain the defendant’s assertions in paragraphs 9 – 1 3 of its amended statement of defence. To the claimant, the defendant, by paragraph 6 of its written address, appears to have misunderstood the case of the claimant. The claimant contrary to misapprehension of the defendant is not challenging his suspension but rather the failure on the part of the defendant to let him know his fate since 2009 when he has been on suspension. Therefore, the submission of the defendant in paragraph 4.6 of its written address is a misconception of claimant’s case. That the defendant appears to have forgotten completely that the claimant has not approached this Court to determine or review his culpability or otherwise in respect of the allegation levied against him by the defendant but the propriety or otherwise of keeping him on suspension since 2009 without telling him his fate. The claimant submitted on another wicket that assuming without conceding that the claimant having appeared before the disciplinary committee of the defendant has been recommended for dismissal by the said disciplinary committee and whose recommendations the defendant purported to have followed in issuing the incurably defective Exhibits D4 and D5 in dismissing the claimant, the minutes or report of the said disciplinary committee of 16th October 2009 worsens the case of the defendant by the obvious defect in the said report marked as Exhibit D3 which had 7 persons as its chairman and members. That it is very obvious that only 2 out of the 7 personnel that constituted the said disciplinary committee signed same. In fact, the Chairman of the committee did not sign. Thus Exhibit D3 upon which the defendant submits it is relying on to write the incurably defective Exhibits D4 and D5 is itself highly defective and cannot be relied on. To the claimant, it is trite that one cannot place something on nothing and expect it to stay (UAC v. Macfoy [1962] 3 NMLR 1405). The claimant then prayed the Court to discountenance the submission of the defendant on this score. In conclusion, the claimant prayed the Court to grant all the reliefs of the claimant because – 1. The claimant has been on indefinite suspension in the defendant’s bank since l6th September 2009. 2. The said indefinite suspension is illegal, unconstitutional and oppressive. 3. Exhibits D4 and D5 were never served on the claimant or their contents communicated to him. 4. Exhibit D3 is unreliable. 5. Exhibits D4 and D5 are mere afterthoughts. 6. The defendant has failed woefully to establish communication or service of Exhibits D4 and D5 on the claimant. 7. The claimant has successfully established his case against the defendant. The defendant reacted by filing a reply on points of law. To the defendant, if, by the argument of the claimant, he is not challenging “his culpability or otherwise”, which is a euphemism for the admission of his culpability, then of what use is his suit before the Court? That the law as known to the defendant is about substance and not form, citing Bello v. AG Oyo State [1986] 5 NWLR (Pt. 45) 828 at 886 F – H or [1986] NSCC 1257 at 1299 lines 20 – 31. That by not challenging his culpability or otherwise the claimant herein admitted aiding and abetting stealing and sharing in the loot of the stealing. Yet, he is calling on a court of law and equity to force him on the defendant so that he can aid more stealing and share more loot. The claimant had argued in paragraph 5.03 of his written address that – The claimant contrary to the submission of the defendant contends that his suspension which hitherto was legal before the sitting of the Disciplinary Committee has become illegal one by failure on the path of the defendant to either terminate, reinstate or dismiss the claimant after the sitting of the said disciplinary committee since 2009 thereby leaving the claimant’s fate hanging. In reaction, the defendant stated that the law as it knows it to be is that parties as well as the Court are bound by pleadings, referring to Amadiume v. Ibok [2006] All FWLR (Pt. 321) 1247 at 1269 F – G, Woluchem v. Gudi [1981] 5 SC 291 and Dokubo v. Omoni [1991] 4 NWLR 132 at 155. That in the case at hand nowhere did the claimant plead that either by any known or unknown contract between himself and the defendant the defendant is under a duty to make a pronouncement within a specific period after the sitting of the Disciplinary Committee. The defendant submitted that nowhere in the pleading did parties join issue on the specific period that trial of the claimant must take. The claimant did not plead the time duration which the Disciplinary Committee must submit its report. The claimant did not plead the time duration which the defendant must notify him of the outcome of its own Disciplinary Committee. Indeed, that the claimant did not put anything in either the pleading or evidence to show the time duration within which his suspension he now agreed to be lawful prior to the sitting of Disciplinary Committee, must be brought to an end by the defendant, failure of which it will thereafter become unlawful. After all by his own pleading and evidence investigation must be concluded. The defendant went on that the claimant’s case is obvious in paragraph 18 that “the claimant was informed that thereafter he will be contacted later in the outcome of investigation”. The duration of this “later” he did not plead. That in law he cannot now turn back to say that “later” is immediately after the sitting of Disciplinary Committee. That it is a settled principle of law that counsel’s address is not a substitute for pleading and evidence, referring to REAN Ltd v. Aswani Textiles Ind. [1991] 2 NWLR (Pt.. 176) 639 at 649, Ishola v. Ajoboye [1998] 1 NWLR (Pt. 532) 74 and Mallam Yusuf Olagunju v. Chief E. O. Adesoye & anor [2009] 9 NWLR (PT.1146) 225. On the claimant’s argument that he “is not challenging his suspension but rather the failure…of the defendant to let him know his fate since 2009 when he was suspended”, the defendant replied that counsel as ministers in the temple of justice owe a duty to the administration of justice not to contend against simple arithmetic, citing Enitan v. State [1986] 3 NWLR (Pt. 30) 604 at 612 C – D and Idahosa & anor v. Oronsaye [1959] NSCC 156 at 142 lines 37 – 42. That in the case at hand, the learned counsel submitted that they are not challenging the suspension of the claimant; then of what use is the claimant’s prayer that the Court should annul his undeserved suspension? However, that at the address stage the story changed. The suspension is not being challenged, the culpability is conceded. Then, why litigate? That in law the most honourable thing to do is to submit to judgment, referring to Ajide v. Kelani [1985] 3 NWLR (Pt. 12) 248 at 268 C – D where His Lordship Oputa, JSC opined thus – A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings, then turn summersault during the trial; then assume nonchalant attitude in the Court of Appeal; only to revert to his case as pleaded in the Supreme Court. Justice is much more than a game of hide and seek. It is an attempt, our human imperfections notwithstanding, to discover the truth. Justice will never decree anything in favour of so slippery a customer as the present Defendant/Appellant. To the defendant, since the claimant has accepted his suspension, his case is liable to be dismissed. The defendant then wondered whether it is necessary to pay the claimant damages for a justifiable suspension and answered in the negative. The learned counsel for the claimant had relied on the case of Mobil Producing Nig. Unltd v. Udo [2009] All FWLR (Pt. 482) 1177 to contend that a staff in suspension still remains a staff. In answer, the defendant submitted that the claimant’s counsel failed to appreciate that in that case the respondent was suspended indefinitely but in the case at hand, the claimant by his own evidence was merely suspended pending the investigation and the claimant has not been able to show that the investigation has been concluded. That he is under a duty to plead and prove that the investigation has been concluded and that upon the conclusion of the investigation he was declared innocent or merely reprimanded, hence, his suspension ought to have been lifted. The claimant neither pleaded nor proved such facts and so he cannot take the benefit of that authority. Furthermore, that the circumstances of Mobil Producing Nig. Unltd v. Udo cited by the claimant’s counsel is far from the case at hand. To the defendant, the facts, issues and circumstances, are very different and are clearly distinguishable from the facts of the instant case. The law is clear that each case must be considered according to its peculiar facts, circumstances and merits. It is only where the facts and circumstances of a case are in pari material with another that the ratio decidendi could be applied to it, referring to Mobil Producing Nig. Unltd v. Udo (supra) at page 1204D. First, that in Mobil Producing Nig. Unltd v. Udo, Omokri, JCA who read the lead judgment reproduced at page 1209D the relevant portion of the letter of indefinite suspension and the words “indefinite suspension” was specifically used to qualify the kind of suspension the respondent therein was placed on by the 1st appellant. Second, the offence of Mr. UDO that led to his indefinite suspension was an accident which cannot by any stretch of imagination be equated to a gross misconduct as it is the situation in this case. Third, Mr. Udo already faced a panel after the accident and there he received a slap on the wrist when the panel wrote him a letter of warning that he should avoid such incidents of accidents for the next one year to avoid severe disciplinary measures against him. But the respondent was issued another letter 6 days later suspending him indefinitely. The Court of Appeal at page 1209 was of the view that the second letter occasioned double jeopardy to Mr. Udo. Fourth, the Court observed that the appellant wanted the respondent out of her employment by all means. That this is far from the present situation where the claimant himself admitted severally to have committed an act of gross misconduct. To the defendant, by this admission of the claimant, substance departed from his case never to return as the claimant who admits to have committed gross misconduct cannot be foisted on the defendant. The defendant agreed with the argument of the claimant’s counsel that he who asserts the affirmative of a particular issue bears the burden of proof. In the light of this, the defendant submitted that the claimant failed to prove that he was suspended indefinitely. That the defendant on the other hand has established that the claimant was suspended pending the conclusion of investigation and also led evidence that the claimant faced a panel that found that the claimant was guilty of gross misconduct punishable by summary dismissal. The defendant wrote a letter of dismissal to the claimant which the defendant claims was not served on him. That it is vital to note that the claimant did not establish when the defendant concluded its investigation, neither did he show when his suspension started to become indefinite. That there is, however, evidence on record that the claimant knew that he was already dismissed from the defendant’s employment. The defendant submitted that the claimant’s case is lacking in substance and/or merit and same should be dismissed. I heard learned counsel and considered all the processes in the matter. In considering the merit of the case, I need to first resolve the issue of the admissibility of Exhibits H and D3, and the probative value/weight of Exhibits D4 and D5. Exhibit H, frontloaded by the claimant, is an undated letter titled “Re: Indefinite Suspension of Mr. Osamota Macaulay Adekunle: Letter of Reinstatement and Payment of Outstanding salaries, Allowances and Other Entitlements”. It is addressed to the Chief Executive Officer of the defendant company and signed by the counsel to the claimant. By Oghahon v. Reg. Trustee CCGG [2001] FWLR (Pt. 80) 1496; [2002] NWLR (Pt. 749) 675, an undated letter is invalid except proved by oral/parole evidence the date left out. There is no other proof as to the date of Exhibit H. This means that Exhibit H is invalid; and I so find and hold. It will, therefore, be discountenanced for purposes of this judgment. Exhibit D3, frontloaded by the defendant, is “Minutes of Regional Bank Disciplinary Committee’s Meeting Held at the Regional Bank Head’s Office on 16th October 2009”. Those present at the meeting were put at 7 including the Chairman; but only 2 of the 7 members signed the minutes. The Chairman of the Committee did not even sign the minutes. The defendant frontloaded this exhibit as evidence that the claimant faced a disciplinary panel and his dismissal was recommended by the panel. In its submission, the defendant did not see anything wrong with only 2 out of 7 members of a panel signing the minutes of the panel (with the Chairman of the panel not even signing). In fact, to the defendant, since the case of the claimant is not one against his dismissal, Exhibit D3 is a non-issue. Where a panel meets and a minority number of the panel sign the minutes or report while the majority did not sign, the natural inference is that they did not agree with the contents of the minutes or report. It is even a worse case where the Chairman of the panel is amongst the majority that did not sign. Such minutes or report is consequently worthless and has no probative value or weight. Exhibit D3 is accordingly worthless and has no probative value or weight; and I so find and hold. Exhibit D3 will, therefore, be discountenanced for purposes of this judgment. I now turn to Exhibits D4 and D5 frontloaded by the defendant as proof of the dismissal of the claimant from its employment. Exhibit D4 is dated December 2, 2009 with Reference No. HCM/WPE&CM/LOD/PE/NO/TO/02/12/09/413 and titled “Letter of Dismissal”, while Exhibit D5 is dated December 8, 2009 with Reference No. HCM/WPE&CM/TP/NO/TO/BO/08/12/09/95 and titled “Re: Letter of Dismissal”. Both exhibits were signed but the identity in terms of the names or offices of those who signed was not disclosed. What we have beneath each signature is the phrase “Authorized Signatory”. To the defendant, all the law requires for a document like Exhibit D4 or D5 to be authentic is that it must be signed. In support, the defendant referred the Court to Omega Bank (Nig.) Plc v. OBC Ltd [2005] 8 NWLR (Pt. 928) 574 at 576 E – F where Musdapher, JSC (as he then was) said – It is impossible under all the circumstances of this case to take exhibit P.6 as an offer or acceptance of an offer. It is a document not signed nor addressed to the respondent, it is a worthless document which does not have any efficacy in law (emphasis is the defendant’s). I do not see how this case can be the authority for the argument of the defendant. A statement by His Lordship that a document was not signed cannot be read to mean that only a signature on a document makes the document authentic. This is warped reasoning on the part of counsel to the defendant. Even His Lordship acknowledged that there is more to declaring a document authentic than the existence of a mere signature when he added the words “nor addressed to the respondent” after stating that the document in issue was not signed. Even when His Lordship said that the document in issue is not signed, His Lordship did not say that disclosing the identity of the signer of the document is immaterial or unnecessary. Of what use is a signature when the identity of the signer cannot be ascertained? The signature could as well have been a fraud. Exhibit B (same as Exhibit D1) is the offer of employment given by the defendant to the claimant. It is signed by two signatories whose names and offices are disclosed. Exhibit C (same as Exhibit D2) is the letter of confirmation from the defendant to the claimant. Again, it is signed by two signatories whose names and offices are disclosed. Even Exhibit D, which is an email that is not necessarily signed, has the names and offices of the two officers of the defendant that generated it. Exhibit G, a letter from the defendant to the claimant’s solicitors, has two signatories with their names and offices disclosed. With this sequence, how come that Exhibits D4 and D5, emanating from the defendant and purportedly sent to the claimant, have only signatures and not the names and offices of the signatories as seems to be customary of the defendant when Exhibits B, D1. C. D2, D and G are taken into account? DW under cross-examination stated that he really cannot say why Exhibits D4 and D5 did not disclose the names of the signatories unlike Exhibits D1 and D2. To him Exhibits D4 and D5 emanated from Head Office, while D1 and D2 emanated from the Region. He then acknowledged that only Exhibits D4 and D5 have Kogi State as the address of the claimants. He also confirmed that Exhibits D4 and D5 do not have any acknowledgment of receipt on it. Notwithstanding the attempt at explaining away the non-disclosure of identity of the signatories of Exhibits D4 and D5, I agree with the claimant that they as well as the attempted explanations are afterthoughts by the defendant. The identity of the makers is masked by the defendant so that no evidence on them can be called. I, therefore, find and hold that Exhibits D4 and D5 have no probative value or weight worthy of consideration in this judgment. They are accordingly discountenanced for purposes of this judgment. From the reliefs claimed by the claimant, his case is that he has been wrongly and indefinitely suspended by the defendant and so needs to be recalled and compensated by the defendant. The defendant disagrees. Reliefs 1 and 2 seek for declarations that the indefinite suspension of the claimant is wrong. Relief 3 seeks for a declaration that the claimant is still in the service of the defendant and relief 5 seeks for an order of his reinstatement. Relief 4 seeks for an order setting aside the indefinite suspension. Reliefs 6, 7, 8 and 10 seek for monetary awards as consequential orders. And relief 9 seeks for any other relief the claimant may be found entitled to. Both parties agree that the claimant was suspended. Exhibit D is an email dated September 17, 2009 from Aiyuda, Onaa to the claimant wherein the claimant was placed on suspension without pay with immediate effect for the claimant’s alleged involvement in an ATM fraud of N1.1 Million at Ilorin Business office. The issue in contention between the parties is whether the suspension was indefinite or not. The defendant argues that because the phrase ‘indefinite suspension” was not used, the suspension cannot be said to be indefinite. I do not agree with this submission of the defendant. The fact that a suspension is not branded indefinite does not mean that it cannot be indefinite especially where the suspension is not delimited by time or period in the first place as is the case in the instant case. The claimant was simply suspended with immediate effect and without pay. The period of the suspension was not stated. In Mr. Ajakaiye Oludare v. Canaan Consulting & anor unreported Suit No. NICN/LA/131/2012 the judgment of which was delivered on February 5, 2014, the claimant had argued that a provision of conditions of service in not using the phrase “indefinite suspension” cannot be held to contemplate indefinite suspension. This is what this Court said – 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. In like manner, Exhibit D in the instant case may not have used the phrase “indefinite suspension”, it did not circumscribe, limit or restrict the period of the suspension either. So long as the claimant remains in suspension, that suspension in effect becomes an indefinite one. Was the suspension (whether indefinite or not) of the claimant wrongful? This remains the question. To the claimant’s counsel, contrary to the submission of the defendant, the claimant’s suspension which hitherto was legal before the sitting of the disciplinary committee became an illegal one by the failure of the defendant to terminate, reinstate or dismiss the claimant after the sitting of the said disciplinary committee since 2009 thereby leaving the claimant’s fate hanging. This reasoning by the counsel to the claimant is not substantiated or supported by any authority or precedent. Case law is replete with authorities that indicate what a claimant would need to show to succeed in a claim for suspension. The claimant did not allude to any to assist the Court in considering the claims of the claimant. In Ms. Claudia Ojinmah v. Coxdyn Nigeria Ltd unreported Suit No. NICN/LA/111/2012 the judgment of which was delivered on March 27, 2014, this Court reviewed these authorities in the following words – Suspension is an aspect of the discipline of a staff by an employer; and by Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) 624 SC at 649 C, an employer has the right to discipline any erring employee in the interest of the organization or institution, although NEPA v. Olagunju [2005] 3 NWLR (Pt. 913) 602 held that it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. Indeed, as held in Shell Pet. Dev. Co. (Nig.) Ltd v. Omu [1998] 9 NWLR (Pt. 567) 672, it is a disruption of an ordinary employer’s business to fetter him with an injunction not to discipline his servant. The employer accordingly has the right to suspend an employee when necessary, with or without pay or at half pay. However, the English cases of Hanley v. Pease & Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653, 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 (outside of the Court) 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…Where a suspension is vindictive or mala fide, Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC held that that may amount to an unfair labour practice and so is actionable under the dispensation of the Third Alteration to the 1999 Constitution. By Yussuf v. VON Ltd [1996] 7 NWLR (Pt. 463) 746 CA, Shell Pet. Dev. Co. v. Lawson Tack [1998] 4 NWLR (Pt. 545) 249, Ayewa v. University of Jos [2000] 6 NWLR (Pt. 659) 142, Akinyanju v. University of Ilorin [2005] 7 NWLR (Pt. 923) 87 and Longe v. FBN Plc [2010] 6 NWLR (Pt. 1189) 1 SC, suspension cannot amount to breach of the employee’s fundamental rights as it has no bearing with issues of fundamental right under the Constitution. In fact, the law permits a person unlawfully suspended from work to seek redress in the Court and claim his full salary (ACB Ltd v. Ufondu [1997] 10 NWLR (Pt. 523) 169 CA), which is what the claimant in the instant case has done. Further still, by Yussuf v. VON Ltd [1996] 7 NWLR (Pt. 463) 746 CA, suspension cannot be questioned on the ground that it could not be done unless the employee is given notice of the charge and the opportunity to defend himself i.e. the rules of natural justice do not even apply in cases of suspension. The argument of the claimant in the instant case is that her suspension is unwarranted (see paragraph 24 of her sworn deposition and Exhibit P). Exhibit P is a letter dated 1-11-11 from the claimant to the Chairman of the defendant wherein she complained of the strained working relationship between her and the Managing Director of the defendant company. Beyond this, there is no other proof as to how her suspension is unwarranted…. The legal consequence of suspension is determinable from the terms of employment in question. However, a cardinal consequence is that the suspended employee remains an employee of the employer even in suspension. In the instant case, other than Exhibit A, there is no ‘conditions of service’ frontloaded by the claimant. Under cross-examination, the claimant testified that the offer of employment only contained to an extent the terms and conditions of her employment but that certain things were omitted which she drew her employer’s attention to in her letter of acceptance. But she never got a reply. She acknowledged however that there was no other document given to her that contains the terms and conditions of her employment. For this reason, a good deal of what she claimed are what she said was promised her orally by the defendant. To show that her suspension was wrongful, the claimant also referred this Court to the Court of Appeal decision in Longe v. First Bank Nig. Plc [2006] 3 NWLR (Pt. 167) 228 at 240 where it was held that there is no provision in CAMA for suspension or disciplining of an Executive Director. The claimant seems to forget that this Court of Appeal decision was overturned at the Supreme Court. Since there is no ‘conditions of service’ providing for suspension (Exhibit A did not provide for it either) it means that there is no express or contractual right of the defendant to suspend without pay. The defendant was accordingly wrong to have suspended the claimant without pay. See Hanley v. Pease & Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653. Even when the defendant argued that on the authority of the Halsbury’s Laws of England, Third Edition, Volume 25 at pages 518 – 519 and Michelin (Nig.) Ltd v. Alaribe [2010] All FWLR (Pt. 543) 1998 CA an employer can suspend an employee without pay, the defendant did not address its mind to the fact that this is possible only when the conditions of service so provide. Specifically, ACB Ltd v. Ufondu [1997] 10 NWLR (Pt. 523) 169 held that where there is no justification for putting an employee on suspension in the first place, the employee ought to be paid his salary or the other half of his salary if he is put on half salary; and Yussuf v. VON Ltd (supra) held that it is not improper for the employer to suspend on full pay an employee pending inquiries on a suspension that may rest on the employee. It is not in doubt that an employer has an unfettered right to suspend, but the scope of that right is contingent on the contract of service and/or conditions of service making the necessary provisions in that regard. In the instant case, therefore, since the defendant did not make any express provision as to suspension without pay, while it can suspend the claimant, it certainly cannot suspend her without pay as it did in the circumstances of this case; and I so find and hold. In the instant case, no “conditions of service” was frontloaded by the claimant. So when Exhibit D suspended the claimant with immediate effect and without pay, there is no conditions of service against which this Court can determine the legality or otherwise of having to suspend the claimant without pay. It is the claimant who asserted that his suspension is wrongful. So, it is the claimant that must frontload the conditions of service in order for the Court to determine whether or not the suspension conforms to the conditions of service for it to be lawful. This duty, the claimant has not discharged. The “UBA Employee Handbook” upon which relief 2, for instance, is based was not frontloaded by the claimant. I stated earlier that Exhibit D in the instant case may not have used the phrase “indefinite suspension”, it did not circumscribe, limit or restrict the period of the suspension either; and that so long as the claimant remains in suspension, that suspension in effect becomes an indefinite one. The evidence frontloaded by the defendant to show that the claimant had been dismissed (Exhibits D3, D4 and D5) have been discountenanced by this Court. This means that only the evidence that the claimant has been suspended is valid before the Court. In the eyes of the Court, therefore, the claimant is still under suspension; and the suspension still subsisting transmutes to an indefinite one; and I so find and hold. Having found and held that the suspension of the claimant is subsisting and hence indefinite, it remains to consider the legal consequences of the suspension and hence rights of the claimant. In Lasisi Gbadegesin v. Wema Bank Plc [2012] 28 NLLR (Pt. 80) 274 NIC, this Court held as follows – 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. The claimant in the instant case has been suspended since September 17, 2009. On the authority of Olafimihan v. Nova Lay-Tech Nig Ltd and Lasisi Gbadegesin v. Wema Bank Plc (all supra), the suspension of the claimant since September 17, 2009 must, therefore, be read as evincing an intention to repudiate 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. The defendant had, however, abandoned its counterclaim. This means that, of the reliefs claimed, the claimant is entitled to only the declaration that he remained an employee of the defendant only up to the date of this judgment; and accordingly is entitled to the declaration that he is entitled to “all his entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office” from September 17, 2009 when he was suspended to the date of this judgment. Since these “entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office” have not been particularized and proved, this Court cannot make any consequential order as to their payment. See generally the Supreme Court decision in University of Jos v. Dr M. C. Ikegwuoha [2013] 9 NWLR (Pt. 1360) 478. Relief 7 is for “an order awarding 35% pre-judgment and 10% post-judgment interest on the claimant’s entitlement, emolument, allowances, salaries, bonuses, etc”. This Court does not grant pre-judgment interest. See Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374, Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd unreported Suit No. NICN/LA/48/2012 the judgment of which was delivered on March 26, 2014 and Miss Odiete Hope Ogaga v. Jopa Energy Ltd unreported Suit No. NICN/LA/408/2012 the judgment of which was delivered on March 26, 2014. And “the claimant’s entitlement, emolument, allowances, salaries, bonuses, etc” have not been proved for any post-judgment interest to be awarded. For these reasons, the Court cannot grant relief 7. For the avoidance of doubt, the claimant is only entitled to the following declaratory reliefs – 1. A declaration that the claimant remained an employee of the defendant since September 17, 2009 when he was suspended up to the date of this judgment. 2. A declaration that the claimant is entitled to “all his entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office” from September 17, 2009 when he was suspended to the date of this judgment. I must stress that since the claimant’s “entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office” have not been proved before this Court, this Court cannot make any order in their regard. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip