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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: February 10, 2015 SUIT NO. NIC/EN/105/2013 Between Victor C. Enyidede - Claimant And 1. Roche Construction Nigeria Limited 2. Mr. Paul Roche - Defendants Representation: Patrick O. Ekeanyanwu; with him, C. I. Obimba for the Claimant S. C. Ozougwu for the Defendant JUDGMENT The claimant took up a complaint dated and filed on the 26th day of April 2013 against the defendant praying for the following reliefs – (1) A Declaration that he is still an employee of the 1st Defendant. (2) The sum of €7,500 (Seven Thousand, Five Hundred Euros) or its equivalent in naira at the Central Bank of Nigeria’s rate as at the date of judgment, being his salary for January and March 2013. (3) An order directing the 1st Defendant to pay him his salary at the end of every month until the suit is determined. (4) 10% interest on the judgment debt from the date of judgment and until the judgment is liquidated. (5) N800,000.00 as cost of this litigation. The Complaint was accompanied with an Affidavit in verification of the endorsement on the complaint, Statement of Facts establishing the cause of action, the Claimant’s written deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The Defendants entered appearance and filed a Statement of Defence vide a motion for extension of time on the 31st day of October 2013 along with a list of witnesses, witness’ statement on oath, list of documents and copies of documents to be relied upon. The Claimant sought leave of court and on the 25th day of November 2013, filed a Reply to the Defendant’s Statement of Defence, Claimant’s additional deposition on oath, additional list of witnesses and additional list and copies of documents. The case proceeded to hearing on the 9th day of January 2014. The Claimant testified for himself as CW1; Okechukwu Onyeachu, a Chartered Accountant testified for the Claimant as CW2. Joel Atima, a staff of Roche Construction Nig. Ltd testified as DW1; Grace C. K. Oparaeche, a staff of Zenith Bank Plc. testified as DW2, while Mr. Paul Roche, the Managing Director of Roche Construction Nigeria Ltd. testified as DW3. Hearing was concluded by the 8th day of July 2014, and at the close of the case for each of the parties, final written addresses were filed in accordance with the rules of this court, starting with the defendant. The defendants filed their written address on the 22nd day of September 2014 and the Claimant’s written address was filed on the 9th day of October 2014. Thereafter, the Defendant filed a Reply on points of Law on the 3rd day of November 2014. They adopted their respective written addresses on the 3rd day of November 2014. Judgment in this matter could not be delivered earlier than today because of the intervening events of the Christmas vacation which dovetailed into the Nationwide Judiciary Staff Union Strike which was recently called off in Federal Courts. The defendants in their written address filed on the 22nd day of September 2014, raised the following two issues for determination: (a) Whether the claimant is still an employee of the 1st defendant (b) Whether the claimant is entitled to the sum of €7,500(Seven thousand, Five Hundred Euros) or its equivalent in Naira being salary for January to March 2013 and every other month until this suit is determined. In arguing issue one, Counsel for the defendants submitted that the real question is when and how the employment of an employee such as the claimant is terminated. He cited the case of NEPA vs. ADESAAJI (2002) 17 NWLR (Pt. 797) 578 CA where it was held that, “A dismissal takes place if: (a) the employer terminates the contract of employment with or without notice (b) if a fixed term contract expires without being renewed (c) the employee terminates the contract with or without notice in circumstances which are such that he is entitled to do so by reason of the employer’s conduct and (d) the employment is terminated by death, dissolution, liquidation of the employer or the appointment of a receiver. Counsel referred the court to the fact that CW1 in the course of his evidence in chief on 9/01/2014 admitted the fact that the defendants placed him on an indefinite suspension. Again on the 8/7/2014, the 2nd defendant as DW3 testified under cross-examination that the Claimant was served with a termination letter in March 2013 through DHL. This piece of evidence was neither contradicted nor queried. It is the contention of the Claimant that he is still an employee of the defendant even after it is manifestly and abundantly clear to both parties that the relationship between them have long ago been severed, occasioned by the misconduct, ineptitude and criminal acts of the Claimant. Counsel answered in the negative, the question as to which master would suffer the same ordeal as the defendants and will still be willing to retain the services of the servant. DW3 testified that the defendants wrote series of letters to the claimant while still in their employ warning him of his ineptitude and misconducts and not being alive to his duties. Counsel referred the court to the said letters which were admitted in evidence as Exhibits DD3-DD5. Again, according to the defendants, DW1 – Mr. Attima on 1/4/2014 testified that in his duty as chief security officer of the defendants, he conducted a routine search on the claimant on the 27/2/13 while he was proceeding on an indefinite suspension; and discovered a missing Authority To Collect (ATC) on the claimant which he handed over to the defendants. This piece of evidence was neither shaken nor disproved under cross examination. On the 27/5/2014, PW2 – Grace Oparaeche testified to the fact that the claimant tried to steal the sum of N2.3Million using his personal email address even though he was already on suspension. According to Counsel for the defendants, this evidence was yet again unshaken by the claimant during cross examination. Even though the claimant flimsily claimed that his e-mail account was hacked but failed to supply who hacked same and did not deem it worthy of report to the police to investigate same. At this juncture it is amply clear from the evidence put forward above the parties that the defendants have all the grounds to dismiss/terminate the employment of the complainant and has successfully done so. In D.A. (NIG) ALEP LTD vs. OLUWADARE (2007) 7 NWLR (Pt.1033) 336 CA the Court held thus: “Thus, where an employee refuses to obey a lawful order, his employer is at liberty to summarily dismiss him for disobedience and insubordination”. Also the Court of Appeal stated in NITEL Plc. vs. AKWA (2006) 2 NWLR (Pt. 964) 391 CA that: “A master or an employer is entitled to suspend, retire, terminate or dismiss his or its servant/employee’s appointment for good or bad reason or for no reason at all. To the defendants, the claimant failed woefully to prove that he is still an employee of the defendant. In his evidence in chief, he testified to the fact that the defendant served him a letter dated 27th February 2013 asking him to proceed on an indefinite suspension. The letter was tendered and admitted as Exhibit CC5. DW3, the 2nd defendant under cross examination confirmed that the claimant was actually put on an indefinite suspension and that his job was terminated sometime in March of 2013 which was communicated to him through DHL courier service. These pieces of evidence were not in any way controverted, quizzed or shaken by the claimant. DW3 also in his evidence in chief testified to the fact the claimant before 27th February 2013 became ineptitude and was not performing his duties for which he was employed and that he was written series of letters to that effect yet he refused to sit up or change his attitude and become productive. These letters were tendered and admitted in evidence and marked Exhibits DD3, DD4 and DD5. According to counsel, DW3 also gave evidence of the claimant’s criminal intents and criminal acts against the 1st defendant such as his fraudulent activities in short deliveries of cement to the 1st defendant. He tendered Exhibit DD6 to buttress same. Counsel recalled further the fact that the 2nd defendant also testified to the fact that 2 ATCs (Authority to Collect) cement that were earlier missing were found on the claimant on the 27th day of February 2013 when the security carried out routine search on him while he was leaving for indefinite suspension. This evidence corroborated the earlier evidence of DW1 – Mr. Attima who testified on the 1st day of April 2014 under cross examination, he testified that on the 27/2/14 that he was called by the Human Resources Office that the claimant has been placed on an indefinite suspension and that he personally handled the search of the claimant and found the missing ATCs on him which he handed over to the authorities of the 1st Defendant. To counsel, the claimant’s claim that he was not issued with termination letter holds no water. Assuming but not conceding the fact that he was issued only suspension letter, the question now is, what is the position of the law as regards this position especially in the nature of the present master and servant relationship. Concerning this, the Court of Appeal had this to say in the case of SHELL PETROLWUM DEV. CO (Nig.) LTD vs. IFETA (2001) 11 NWLR (Pt. 724) 478CA “.. an employee may be dismissed or terminated by conduct, orally or in writing so long as the intention to terminate is clear. Even where the contract of employment stipulates that the contract may only be terminated in writing, dismissal can be implied from an employer’s conduct. It is pertinent to note at this stage that the claimant was suspended on the 27/2/13 and dismissed the following month March same year and upon till now he has never been contacted by the defendants to resume his duties. So even if he was not served with termination letter is it not amply clear that by conduct of his former master, his service is no longer needed. The claimant under cross examination admitted the fact that he was thrown out of the office for a period more than one year. He has not been asked to come back to work. Again, it was held in OSISANYA vs. AFRIBANK (Nig.) Plc. (2007) 6 NWLR (Pt. 1031) 565 SC thus: “In a master and servant relationship, a dismissal of the employee by the employer cannot be declared null and void and of no effect whatsoever. Such termination cannot be said not to be subsisting as the Court cannot impose a servant on an unwilling master. The employee’s remedy is in damages where the termination of the appointment or dismissal is held to be wrong”. Moreover in the same OSISANYA vs. AFRIBANK supra, the Court held that “… a master cannot be compelled to retain the services of his servant. NO COURT CAN IMPOSE AN EMPLOYEE ON THE EMPLOYER. The only remedy available to the servant is an action in damages”. Again, the Court in NWOBOSI vs. AFRICAN CONTINENTAL BANK LTD. (1995) 6 NWLR (Pt. 404) 656 held thus: ‘An employer has a common law right to dismiss his employee without notice on grounds of misconduct or willful disobedience”. Finally on issue one, Counsel urged the Court to find that the employment of the complainant has been terminated since the month of March 2013 and declare thus in favour of the defendants. In arguing Issue two whether the claimant is entitled to the sum of €7,500 (Seven Thousand, Five Hundred Euros) or its equivalent in Naira being salary for January to March 2013 and every other month until this suit is determined, Counsel for the defendants answered the said question in the negative. He went on that the rule of evidence is that he who asserts must prove. The onus is always on him to put forward every material evidence with which he will demonstrate to the Court his assertion or claim. It is the claimant’s assertion that held he had not been paid salary since January 2013 but failed to show by way of credible evidence like his statement of account showing the last payment as per his salary. Seeing that the claimant had failed in that duty, the counsel for claimant tried effortlessly to establish same during cross examination of DW3 when he put to him the question that the claimant had not been paid January to February 2013. But DW3 answered that it was not his duty to prepare salary as he is not the accountant. The claimant abandoned questions on that line. However, even if the complaint was not paid January and February salary, the question is whether he is entitled to same? In answer to this question, the Supreme Court has this to say, in U.B.N LTD vs. OGBOH (1995) 2 NWLR (Pt. 380) 647 SC “Where an employee is guilty of gross misconduct he could be lawfully be dismissed summarily without notice and without wages”. In U.B.N v. OGBOH supra, the Court defined “Gross Misconduct” as conduct of a grave and weighty character as to undermine the confidence which exists between the employee and his employer, or which works against the deep interest of the employer. In UNIVERSITY OF CALABAR vs. ESSIEN (1996) 10 NWLR (pt. 477) 225 SC the apex Court held that: “Disobedience of an employer’s lawful order and, or insubordination by an employee is an act of misconduct which may justifiably attract the penalty of summary dismissal, termination or compulsory retirement of the said employee”. Counsel once again referred the Court to the evidence of the DW1 to show explicitly the gross misconduct of the claimant while in employment of the defendant and out of same which actually undermined the confidence which existed between the employee and the claimant. Again it is on record of evidence of the defendants that the claimant is being investigated of his fraudulent activities which resulted in the defendant’s loss of money which is yet to be recovered from the claimant. The Court is referred to Exhibit DD1 petition against the claimant to EFCC. According to counsel, it is important that the Court gets to know if the EFCC has come out with the investigation of fraud against the claimant which is on-going, and of which he has made statements to, before the Court will be better clothed with the authority to declare who owes who. Having made the above submissions in favour of the defendants, it is the defendants’ position that the only evidence before the Court is that of the defendants which stands unchallenged, and that the defendants have placed credible evidence before the Court in disproof of the claimants claim. The defendants then prayed the Court to make an order dismissing the claimant’s claim in its entirety. The Claimant’s written address filed on the 9th day of October 2014 gave a brief summary of the Claimant’s case thus: The Claimant is a Chartered Accountant, a Fellow of the Institute of Chartered Accountants of Nigeria and an Associate Member of the Chartered Institute of Taxation of Nigeria. He is also an employee of the 1st Defendant having been employed on 30th July 2012 as group Internal Auditor. The Claimant accepted the appointment and assumed duties on the same 30th July, 2012 on the terms and conditions embodied in his letter of Appointment which is in evidence as Exhibit CC1. Sometime in February 2013, the Claimant applied for and was granted casual leave to enable him bury his mother. While he was on leave and before the burial, the 1st Defendant withheld the payment of his January 2013 salary on the instruction of the 2nd Defendant. The Claimant protested against the seizure of his salary, which protest in turn made the Defendants to also withhold his February 2013 salary and place him on indefinite suspension with immediate effect until such a time that investigation is completed. On 26th April, 2013 the Claimant commenced this action at the Enugu Division of this Honourable Court but the suit was later transferred to the Owerri Division. In this suit, the Claimant is seeking the following: a. A declaration that he is still an employee of the defendant b. The sum of €7,500 (Seven Thousand Five Hundred Euros) or its equivalent in Naira at the Central Bank of Nigeria’s official rate as at the date of judgment, being his salary for January, February and March, 2013. c. An order directing the 1st Defendant to pay him his salary at the end of every month until this suit is determined. d. 10% interest on the judgment debt from the date of judgment until the judgment debt is liquidated. e. N800,000 as the cost of this action. According to counsel, the Claimant prosecuted his claims on the strength of a Statement of Facts dated and filed on 26th April 2013 and Reply dated 12th November, 2013. The Claimant called 2 witnesses (himself as CW1 and Mr. Okechukwu Onyeachu who testified as CW2) to prove his case. He also tendered 8 documents which were admitted as Exhibits CC1-CC8. On the other hand, the Defendants prosecuted their defence with a joint Statement of Defence dated 3rd October, 2013 but filed on 31st October, 2013. The Defendants called 3 witnesses, namely Mr. Joel H. Atima who testified as DW1, Grace K.C. Oparaeche who testified as DW2 and Mr. Paul Roche who testified as DW3. They also tendered 6 documents which were marked as DD1-DD6. The Claimant proceeded to formulate the following 3 issues for the determination of the Court: a. Whether the Claimant is still an employee of the 1st Defendant. b. Whether the Claimant is entitled to his salary for the months of January and February 2013 before he was placed on suspension on 27/2/2013 and while he is still on suspension. c. Whether the unproven criminal allegations made against the Claimant by the Defendants in a civil suit are valid grounds to justify the seizure of the Claimant’s salaries In arguing Issue one whether the Claimant is still an employee of the 1st Defendant, it was the submission of Counsel for the Claimant that this suit raises the issue of the legal status of an employee who is placed on suspension viz-a-viz his contract of employment. To counsel, there is evidence before this Court (Exhibit CC1, Letter of Employment) that the Claimant is an employee of the 1st Defendant who was employed as a Group Internal Auditor on 30th July, 2012. There is also evidence (Exhibit CC5: Re Protest Letter) that the Claimant was placed on indefinite suspension on 27th February, 2013 by the 2nd Defendant acting as the Managing Director/Chief Executive Officer of the 1st Defendant. The narrow issue which this Court is called upon to determine is whether the placement of the Claimant on suspension has determined his contract of service. A Dictionary of Law by L.B. Curzon defines the word “suspension” at page 327 as “To debar temporarily from the exercise of an office or occupation”. The Oxford Advanced Learner’s Dictionary (7th edition) by A.S Hornby defines suspension at page 1492 as “the act of officially removing somebody from the job, school team etc. for a period of time, usually as a punishment”. From the 2 definitions reproduced above, suspension connotes the temporary removal of a person from his job or office. It is different from termination or dismissal which is final and conclusive in nature. The status of the Claimant as an employee on suspension was pleaded in paragraph 14 of his Statement of facts and confirmed by Exhibit CC5. It was also given in evidence by the Claimant and corroborated by CW2 on 10th February, 2014 and DW1, DW2 and DW3 in their own testimonies. Although DW3 claimed in his evidence in chief that the claimant’s appointment was subsequently terminated in March (2013), he could neither produce the letter by which the appointment was terminated nor the purported undelivered courier package which the he mentioned in his evidence. The position in law is that at the close of the Defendants’ case on 8/7/2014, they could not substantiate their allegation that the Claimant’s status had changed from that of an employee on suspension to one whose contract of employment had come to an end through termination. To counsel, there is also evidence to prove that DW3 lied to the Court when he said that the Claimant’s appointment was terminated in March 2013. The opening sentence in Exhibit DD1: the 1st Defendant’s petition to the Economic and Financial Crimes Commission dated 8th May, 2013 reads thus: “We write to petition against one VICTOR ENYIDEDE, our internal Auditor who has been on an indefinite suspension”. Furthermore, the third paragraph of page 2 of the same petition to EFFC reads as follows: “In another development, Mr. Victor who has been on suspension for over a month now…………….” From the foregoing, it is obvious that both DW3 and counsel to the Defendants misled the Court when they claimed (DW3 in his evidence in chief and Counsel in his final address) that Claimant’s contract of employment was terminated in March 2013. This glaring contradiction becomes obvious when one considers the fact that the Defendants could not have described the Claimant as being on indefinite suspension as at 8th May, 2013 if indeed, his contract of employment had been determined earlier in March 2013. Another contradiction can be found in paragraph 4 of the Statement of Defence wherein the Defendants claimed that the Claimant’s appointment “got terminated on the 27th day of February, 2013” and went on to plead a non-existent letter of termination which they could not tender in evidence. Counsel urged the court to so hold. It was the submission of Counsel for the Claimant that under the Common Law, an employer has no power to suspend an employee as a disciplinary measure with loss of pay. As a general rule, an employer who desires to suspend his employee from work can do so but with full pay but when such suspension carries loss of pay with it, he must act by virtue of a right or power conferred on him by contract. Where no such right or power exists, a suspension becomes wrongful and the affected employee will be entitled to his wages or salary for the period of the wrongful suspension. See Alamu vs. Afrotec Technical Services (Nigeria) Limited (1980) 2 QLRN 126; Adekunle vs. Western Region Finance Corporation (1963) NWLR 5 Aghwe vs. Zapata Marine Services (Nigeria) Limited 6 ECSLR 268 and Oyelude vs. Central bank of Nigeria (1977) NCLR 368. See also the opinion of Professor E. E. Uvieghara in his book “Labour Law in Nigeria” (page 78). Counsel urged the Court to hold that the Claimant is still an employee of the 1st Defendant and his contract or employment still subsists despite his suspension from work. Issue No 1 should therefore be resolved in favour of the Claimant. In arguing Issue No. 2 whether the Claimant is entitled to his salary for the months of January and February 2013 (before he was placed on indefinite suspension on 27/2/2013) and thereafter, while he is still on suspension, counsel recalled that under issue No.1 the status of the Claimant as a bona fide employee of the 1st Defendant was established. There is evidence of his employment in Exhibit CC1 which also embodies the terms and conditions of the said employment. Although clause 5 of Exhibit CC1 provides that “All other conditions of service of Roche group apply to you.” No other conditions of service were conveyed to the Claimant by the 1st Defendant, none was pleaded by the Defendants and none was put in evidence. Exhibit CC1 therefore stands alone as the only evidence of the contract of employment between the Claimant and the 1st Defendant. On the face of Exhibit CC1, there is no power, conferred on the 1st Defendant, express or implied, to suspend the Claimant or to take the more serious action of seizing his salaries for the months of January and February 2013 (when he was placed on indefinite suspension) which salaries he had already earned before 27th February, 2013 and the period after, even while on suspension. According to Counsel, the purported seizure of his January and February 2013 salaries was therefore a clear breach of Clause 1 of Exhibit CC1. As regards the question of salaries for the period of March 2013 up till the date of judgment, counsel referred to his earlier reference to Common law and case law authorities to show that in law, an employer lacks the power to suspend and withhold the salaries of an employee unless he is so authorized by contract. He argued further that the Defendants did not place any evidence of such authorization before the Court as at the close of their case. Exhibit CC5 which placed the Claimant on suspension did not inform him that he will not be paid salaries during the period he will be on suspension. Consequently, Counsel submitted that the Common law provision is that an employee who is on suspension is entitled to his salaries unless there is a contractual restriction of the enjoyment of the right to earn salary. The situation is made worse for the Defendants by the fact that the Claimant has be on “indefinite suspension”, an indeterminate period of time and since 27/2/2013 without the Defendants recalling him. It is submitted that the “indefinite suspension” is a ploy by the Defendants to punish the Claimant by denying him of his legitimate entitlement/right to “1. A consolidated monthly salary of €2,500 (Two Thousand, Five Hundred Euros) payable in arrears” as provided for in Exhibit CC1. Counsel supported his submission in this regard with the judgment of Uwaifo JCA (as he then was) in the case of Amusa Yusuf vs. Volkswagen of Nigeria Limited (1996) 7 NWLR (Pt. 463) 746 ratio 1 at page 753 where it was held that : “The purpose of spelling out the terms of a contract is to enable the parties to know in advance the liabilities and entitlements to which they are subjected hereunder. Where it is a service contract, such written contract in addition is designed to state the service obligation, the manner and method of discipline, etc. These are expected to be observed. Therefore, it is a principle well recognized that a contract freely entered into by parties, if binding and enforceable, should be treated with sanctity as to what parties intended. If any question should arise in respect thereof, the terms as contained in the relevant document or documents must be interpreted to decide the question. In other words, in a contract which is wholly in writing, what was agreed will normally be discovered from what is written”. Consequently, urged the court to resolve issue No. 2 in favour of the Claimant. In arguing Issue No. 3 whether the unproven criminal allegations made against the Claimant by the Defendants in a civil suit are valid grounds to justify the seizure of his salaries since January 2013, counsel for the Claimant recalled that he had earlier submitted that this suit raises the issue of the legal status of an employee who is placed on suspension vis-à-vis his contract of employment. He referred to his earlier submission that the Claimant’s present status as an employee on suspension does not disentitle him to his salaries. In their joint Statement of Defence (Paragraph 4 thereof), the Defendants pleaded that the Claimant’s appointment was terminated on 27th February, 2013, a clear case of mistaking “suspension” for “termination”. They also made strenuous efforts to justify the purported termination and/or wrongful seizure of the Claimant’s salaries by making unproven and unsubstantiated allegations of crime against him. See paragraphs 7, 12, 13 and 21 thereof where such words as “fraud”, “defrauded”, “Fraudulent activities”, “forging”, and “Forged” were freely used. Under Nigerian law, “forgery” is a criminal offence created by section 465 and punishable under section 467 of the Criminal Code. Fraud is also a crime punishable by law under Criminal Code too. Under section 36(5) of Nigeria’s 1999 Constitution (as amended), there is a presumption that a person who is accused of committing a crime is innocent until his guilt is proved. Section 36 (4) of the same constitution also vests in a Court of law or tribunal the power to adjudicate over cases of alleged commission of crime by a Nigerian citizen. Counsel for the Claimant submitted that in view of the presumption of innocence until guilt is proved by a Court of law under Nigerian Law, the Defendants cannot legally seize the Claimant’s salaries from January 2013 up till now, based on unproven and unsubstantiated allegations of commission of crime. To do so will amount to a usurpation of the judicial powers vested in Courts of law by section 6(1) and 6(6) (b) of the 1999 Constitution (as amended). From a procedural law stand point, it is settled law in Nigeria that a party who raises the commission of crime in a civil proceeding must not only specifically plead such a crime in his pleadings, but must also go to plead particulars of the commission of the crime. In Andrew Nweke Okonkwo vs. Cooperative & Commerce Bank (Nigeria) Limited & Ors (1984) NSCC 1, the position of the law was explained as follows: “Any allegation of crime in a civil proceeding must be pleaded and particulars of such a crime must be expressly pleaded”. In Ezekiel Okolo vs. Morecab Finance Limited (2007) 5 SCNJ 25, it was also held that “if irregularity and/or fraud is alleged, it has to be particularized, pleaded and proved”. From the point of view of Evidence, Section 135 (2) of the Evidence Act places the burden of proving the commission of a crime on the person who alleges the crime while section 135 (1) of the Evidence Act sets the standard of proof in such matters as that of proof beyond reasonable doubt. With particular reference to this suit, according to the Claimant, all the Defendants did was to make wild and unsubstantiated allegations of stealing and fraud against the Claimant even when the alleged crimes were neither reported to the Police nor proved in a Court of law. For example, the Claimant was accused of stealing Authority-To-Collect (ATC) documents belonging to the 1st Defendant. In their different testimonies, both DW1 and DW3 claimed that the ATCs were found on and recovered from the Claimant when a search was conducted on him on 27/2/2013 but the ATCs were not produced before the Court. By Section 167 (d) of Evidence Act there is a presumption that no such ATCs exist and if at all they existed, their production will be unfavourable to the Defendants hence their decision to withhold them. Counsel went further that if this allegation was indeed true, both the Claimant and the ATCs would have been handed over to the Police with a view to prosecuting the Claimant but strangely, this standard procedural action was not taken. On the contrary, there is evidence that the ATCs alleged to have been recovered from the Claimant on 27/2/2013 were used by the 1st Defendant to collect cement from Ibeto Cement Company on 21/2/2013. i.e. 6 days earlier. Evidence of this glaring contradiction can be found on the stubs of the 3 subjects ATCs Nos. 00161256, 00161257 and 00161258 with a combined quantity of 90 metric tons of cement which was duly delivered to the 1st Defendant on 21/2/2013. The stubs were stamped “DELIVERED”. In law, this Court has the power to look at processes filed before it and which form part of its records. In conclusion, Counsel urged the Court to hold that the unproven allegations of crime do not constitute a defence to the Claimant’s demand for his withheld salaries and to resolve Issue No, 3 in his favour accordingly. Counsel for the Claimant proceeded to make submissions on his objection to the admissibility of Exhibit DD6. On 8/7/2014, the Defendants tendered Exhibit DD6. The Claimant’s Counsel objected to its admissibility but the Court admitted it conditionally and directed Counsel to incorporate his objection in his final address. The objection was founded on the fact that there is nothing on the face of Exhibit DD6 to link the Claimant to the document. His name is not one of the various names listed on the right hand column. In law, admissibility is founded on relevance and the document not being relevant to this suit, it should be rejected. Counsel urged the Court to so hold. Counsel urged the Court to grant all the 5 reliefs of the Claimant for the following reasons: 1. The Claimant although on suspension is still an employee of the 1st Defendant and is entitled to his salaries for January and February 2013 as well as the salaries for the period March 2013 till the date of judgment which he earned while on suspension at the rate of €2,500 (Two Thousand, Five Hundred Euros)/month. 2. The allegations of criminality raised by the Defendants against the Claimant are irrelevant to the Claimant’s suit and do not constitute a defence thereto. 3. A Nigeria Court has the jurisdiction to enter judgment in currency other than the Naira in a situation where the currency of the contract is not Naira. The defendants on the 3rd day of November 2014 filed a reply on points of law wherein they reacted seriatim to the issues raised by the Claimant in his written address. On issue one, it is the submission of Counsel for the Defendants that the claimant in a bid to prove that he is still an employee of the defendants called to his aid the dictionary meaning of the word “suspension” through two dictionaries. Counsel referred the Court to page 3 of the Claimant’s address for the names of the dictionaries. In the end the Claimant concluded that from the meanings derived, he is still an employee of the defendants without due recourse to the evidence of the DW3 that the claimant’s employment was terminated in March 2013. The Claimant also did not furnish the Court with the dictionary meaning of the word “indefinite” that preceded the word suspension as shown in Exhibit CC5. However, assuming but not conceding the fact that the defendants did not serve the claimant any termination letter in accordance with Exhibit CC1, what is the position of the parties in law? In answer to this question, Counsel called in aid the authority of SHELL PETROLEUM DEV. CO. (Nig.) LTD vs. IFETA (2001) 11 NWLR (Pt.724) 478 CA where the Court held: “… an employee may be dismissed or TERMINATED BY CONDUCT, orally or in writing so long as the intention to terminate is clear. Even where the contract of employment stipulates that the contract may only be terminated in writing, dismissal can be implied from an employer’s conduct. Now, supposing the claimant was not served with the one month notice as required by Exhibit CC1, and he was sent on an indefinite suspension since 27th February 2013, and he has never heard from his master till this day, more than one year, is it not manifestly clear that his services are no longer required? Counsel to the defendant answered this question in the affirmative and submitted that the Claimant’s services have long been discarded by the conduct of his former employer. This is in tandem with the decision of the Court a-fore-cited. Counsel raised this question: Which employer will ordinarily suspend his worker whom he pays €2, 500 (Two Thousand, Five Hundred Euros) and intends to call him back after a period of more than a year and pays him all that without getting back the commensurate, requisite work or labour from the said worker? This counsel answered in the absolute negative. Again, the Supreme Court had made it abundantly clear that even if the laid down rules of engagement in a master servant relationship was not followed in determination of a servant employment, all he is entitled to will be damages especially as it regards to the length of notice due him. Counsel referred the Court to the authority of OSISANYA vs. AFRIBANK (Nig.) Plc. (2007) 6 NWLR (Pt. 1031) 565 SC where the Court held thus: “Where a contract of employment or service is terminable on notice, and the employee whose employment is terminated has not been served with the requisite notice, all he could have earned during the period of notice is the requisite damage that the employee is entitled”. According to Counsel for the defendants, the Claimant’s argument neither lies here nor there. Therefore even if going by his assumption that he was merely suspended since more than a year and from available evidence he is no longer relevant to the defendants, no law protects him as still in the employ of his former master the defendants. Moreover, the crux of the claimant’s grouse against the defendants is that the defendants did not comply with the provisions of Exhibit CC1 in terminating or relieving him of his duties, yet he is not mindful of the fact that complete disregard of terms of contract of employment in a matter can only amount to repudiation of the contract by the employer and he is entitled only to damages but in his case he is not since he is under investigation. On this point, counsel cited the case of ILODIBIA vs. NIGERIA CEMENT COMPANY Ltd. (1997) NWLR (Pt. 512) 174 at pages 176 & 177 SC where the Supreme Court held that: “A wrongful dismissal of an employee in complete disregard of the terms of his contract of employment is a reputation of the contract by the employer. Therefore, the only remedy available to the employee is a claim for damages for wrongful dismissal”. Counsel for the defendants argued against the position of the claimant that the defendants have all the right to terminate the employment of the claimant without wages arising from his gross misconducts as aptly shown in Exhibits DD3-DD5. Counsel referred the court to the Exhibits and to the case of U.B.N LTD vs. OGBOH (1995) 2 NWLR) pt.3800 647 SC where it was held that “Where an employee is guilty of gross misconduct, he could be lawfully dismissed summarily without notice and without wages”. He urged the court to resolve Issue one in favour of the defendants. In reaction to Issue No. 2 where the Claimant had argued that the claimant was not paid salary from the month of January and February 2013, it is the submission of the defendants that the claimant failed to show the Court by any evidence that he was being owed such. Under cross examination of the DW3 he spiritedly tried to prove through his question that the said January and February salary were not paid but the witness answered that he is not the accountant in charge of payment of salary, therefore he doesn’t know. That line of questioning was abandoned by the claimant. It is trite that he who asserts must prove. On Issue three, it is the argument of the claimant that criminal allegation against the claimant were not proved in line with the standard mode of proof. Counsel referred the Court to Exhibits DD3 – DD5 which are letters of Gross Misconduct of the claimant. According to Counsel, that is the defendants’ main plank of terminating the Claimant’s employment. The investigations of his criminal activities are still on going. To the defendants, for the Court to find for the claimant is tantamount to the Court making an order restraining the defendants from dismissing him, foisting him forcefully on the defendants and asking them to pay salaries he has not worked for. See SHELL PET. DEV. CO. (Nig.) vs. LAWSON- JACK (1998) 4 NWLR (Pt. 545) 249 CA where it was held that: “An employee is not entitled to obtain an injunction or Court Order with the aim of retraining his master from dismissing him. He can only claim damages for wrongful dismissal,” Counsel urged the court to dismiss this action with punitive cost. The reliefs sought by the claimant in this suit have been previously set out at the beginning of this judgment. His main claims are for a declaration that he is still an employee of the 1st defendant and claims for his salaries from January 2013 till date of judgment. In view of the reliefs sought by the claimant and the facts of this case, the issue to be determined is whether the claimant is entitled to the reliefs sought. In proving his case, the claimant called 2 witnesses. The evidence adduced by the claimant which is relevant to the determination of the issue in dispute in this case is the claimant’s own evidence as CW1. In his evidence, the claimant testified that he was employed by the 1st defendant on 30th July 2012 vide an employment letter admitted in evidence as Exhibit CC1. The conditions of service as set out in exhibit CC1, contain among others, that his consolidated monthly salary is 2,500 Euros. Although it is contained in Exhibit CC1 that other conditions of service of the 1st defendant company will apply to his employment, until his suspension, the 1st defendant did not introduce any other condition of service. The claimant evidence continued that since his employment, he has discharged his duties diligently and professionally without any query from the defendants until February 2013 when he was on casual leave and the 2nd defendant gave a directive that his January 2013 salary be withheld. Later on 20th February 2013, the 2nd defendant also sent another e-mail instructing the accounts department not to pay the claimant’s salary for February 2013. The claimant protested the seizure of his 2 month’s salary to the 2nd defendant. The protest letter is Exhibit CC4. Following these developments, on 27th February 2013, the claimant received Exhibit CC5 from the Human Resources Manager of the 1st defendant informing the claimant that he has been placed on “indefinite suspension with immediate effect.” Upon his suspension, the security officials of the 1st defendant thoroughly searched the claimant and walked him out of the premises of the 1st defendant on the instruction of the 2nd defendant. The claimant testified that he was humiliated and treated like a common criminal and was not allowed to take his personal belongings from his office. After his suspension, his solicitor wrote Exhibit CC6 to the defendants demanding for the claimant’s earned salaries for January and February before his suspension. The defendants’ solicitor’s reply stated that the claimants’ salaries cannot be paid as a result of a pending investigation into the activities of the claimant within the period. According to the claimant, he has not been paid any salary or any allowances from January 2013 till April 2013 when he filed this suit. The seizure of his salary has made him to default in the repayment of the loan he took from Diamond Bank in which his salary account is domiciled, which account he used as collateral for the loan. In his further evidence in chief, the claimant testified that he is still an employee of the 1st defendant. He maintains that he is merely on suspension as his employment has not been terminated as he was not given nor did he receive any letter terminating his employment. In their defence of the claimant’s claims, the defendants called 3 witnesses. From the defendants’ case, it is admitted that the claimant was an employee of the 1st defendant. There is no dispute that the claimant was an employee of the 1st defendant. What the defendants contend in defence is that the claimant’s employment has been determined and the defendants are not liable to pay the claimant’s any salary as he was involved in fraudulent acts against the 1st defendant. According to the 2nd defendant when he testified as DW3, the claimant ceased being an employee of the 1st defendant when he was relieved of his duty after he was discovered to be involved in fraudulent activities and was incompetent in his work and his appointment was terminated on 27th February 2013. As for the defendants liability for the claimant’s salaries, it is the evidence of the defendants that the claimant was indebted to the 1st defendants by his fraudulent acts and there is need to determine the exact amount and be repaid by the claimant before he can be paid his salaries. In determining the issue in this suit, this court observes that whether the claimant’s employment still subsists or not depends on whether there is no evidence that the employment has been terminated. Also, whether the claimant will succeed in his claim for salaries depends on whether he remains in the 1st defendant’s employment. I will first consider whether the claimant’s employment still subsists. It is the claimant’s evidence that he was suspended by the defendants from his employment on 27/2/2013 vide exhibit CC5. The information passed to the claimant in the exhibit is that “you are therefore placed on indefinite suspension with immediate effect until such a time as the investigations are completed.” According to the claimant, he has been on the indefinite suspension since the date of exhibit CC5 and the defendants have not terminated his employment till date. When he was being cross examined, the claimant continuously maintained that, as at the date of his evidence, he has not been terminated but on indefinite suspension. On the part of the defendants, in paragraph 2 and 4 of the statement of defence, the defendants contended that the claimant’s employment has been terminated after he was found involved in fraudulent acts in his employment. It is pleaded by the defendants that the claimant’s employment was terminated on 27th February 2013 through a letter which they pleaded and placed reliance on to prove the termination. In his evidence, DW3, the Managing Director of the 1st defendant company, testified that the claimant was a staff of the 1st defendant until the employment was terminated on 27th February 2013. He did not however tender any such letter by which the claimant’s employment was terminated. During his cross examination DW1 stated that the claimant was given a suspension letter and he was subsequently sent a termination letter in March 2013 via DHL after 3 failed attempts to serve him to serve him. DW3 further said he does not know if the termination letter is before the court. Portions of the evidence of DW1 and DW2 are also important to the resolution of this issue. DW1 testified in chief that the claimant was relieved of his duty on 27th February 2013 and under cross examination he testified that that he is aware the claimant was suspended indefinitely. He however does not know if the suspension has been lifted. DW2 testified that on 3rd May 2013, the claimant sent a transfer order to her bank of which she was copied. She has been informed that the claimant has been relieved of his duty but under cross examination, she said at the time her bank received the transfer order, the claimant was already on suspension. From the evidence adduced by the defendants, the question that arises is: has this court been satisfied that the claimant’s employment has been terminated? From the evidence of DW1 and DW2, what they are aware of is the claimant’s suspension. In the evidence of DW2, as at May 2013, that is after this suit was filed, the claimant’s status was still that of suspension. Let’s also look at exhibit DD1. This was tendered by DW3 as the petition written to the EFCC against the claimant. The exhibit is dated 8th May 2013 and was received by EFCC on 15th May 2013. At paragraphs 1, 5 and 7 of Exhibit DD1, the defendants repeatedly refer to the claimant as being on indefinite suspension. There is nowhere in the letter, written in May 2013, almost 3 months after the claimant’s suspension, is the claimant’s employment said to have been terminated. The foregoing evidence by the defendants points only to the fact that the claimant was suspended from employment. Although the defendants contend that the claimant’s employment has been terminated, they have failed to establish the fact. It is trite that termination of employment can be in writing, oral or by conduct. See SHELL PETROLEUM DEV. CO LTD vs. IFETA (2001) 11 NWLR (PT.724) 478. It is also trite that parties are bound by their pleadings. See OYEWOLE vs. LASISI (2000) WLR 190 AT 201. The defendants pleaded in paragraph 4 of their statement of defence that the claimant’s employment was terminated on 27th February 2013 by a letter. By this pleading, it is the defendants’ case that the claimant’s employment was terminated in writing. Therefore, the burden is on the defendants to prove the written document by which the claimant’s employment was terminated. The evidence of DW3 is contradictory in this respect. In his evidence in chief he said the claimant’s employment was terminated on 27th February 2013. I have observed from the evidence that this was the date of the claimant’s suspension letter. No other letter has been shown that has the same date. Throughout his evidence, DW3 treated the suspension as the termination of the claimant’s employment. Exhibit CC5 contains no indication of termination of the claimant’s employment but merely an indefinite suspension. Furthermore, when he was cross examined, DW3 contradicted himself when he stated that the claimant’s employment was terminated in March 2013 when he was sent the letter through DHL. Besides the fact that this evidence conflicts with his evidence in chief, DW3 also failed to present a copy of the said termination letter before this court or even evidence from DHL that the letter was delivered to the claimant. It became obvious that DW3 has no such letter when he stated under cross examination that he does not know if the termination letter is before this court. He was the defendants’ main witness in this case and he did tender the defendants’ exhibits in this case. One wonders how come he did not tender a copy of the termination letter if it existed. Since the witness relied on the letter, it is his duty to show it to this court. The defendants pleaded in paragraph 4 of their statement of defence that the claimant’s employment was terminated by a letter and the said letter was pleaded. The defendants are bound by this pleading and are under duty to prove the said letter of termination. No such letter was shown to this court. What is more contradictory with the evidence of DW3 is exhibit DD1. While DW3 said the claimants employment was terminated in February 2013 in his evidence in chief or March 2013 in cross examination, Exhibit DD1 which was written in May 2013 continued to describe the claimant as being on suspension. DW3 is obviously not truthful with regards to the termination of the claimant’s employment. In his written address, the defendants counsel argued that termination of employment can be done orally or in writing or by conduct and he cited SHELL v. IFETA in support. Counsel concluded that the defendants have shown by their conduct of refusal to recall the claimant from suspension that the claimant’s services are no longer required. This line of argument cannot avail the defendants in this case. I wish to educate counsel that the clear intention between the parties, as shown in Exhibit CC5, was the suspension of the claimant. The claimant was placed on indefinite suspension which suspension can subsist for a long time until the claimant is either recalled to work or he is informed his employment is terminated. In this case, it is the defendants’ duty to prove that after the suspension, the claimant’s employment was thereafter terminated. The mode by which the claimant’s employment was terminated as pleaded by the defendants and given in evidence by DW3 is one in writing and not by conduct as the defendants’ counsel now wants to imply. The claimant has contended that his employment has not been terminated and he is not aware of any such letter purporting to terminate his employment. This averment put the defendant to prove that the claimant is aware his employment has been terminated but the defendants have not shown that the purported termination letter was communicated to the claimant. From the evidence before me, I find no reason not to agree with the claimant that he has been on an indefinite suspension since February 2013 and at no time was his employment terminated up till date. Now, having found that the claimant’s employment has not been shown to have been terminated but on indefinite suspension, the question to ask here is: “what effect, if any, does the suspension have on the claimant’s employment?” In LONGE vs. FIRST BANK P.L.C (2010) LER SC 116/2007 AT PAGE 52, the Supreme Court held- “Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exist while there is a contract in force between the employer and the employee but while there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination or contract of employment nor a dismissal of employee. It operates to suspend the contract rather than terminate the contractual obligation of the parties to each other” Also, in MOBIL PRODUCING NIG. UNLTD vs. UDO 2009 All FWLR Pt. 482 1171 at 1224, the court defined suspension as thus- “Blacks’ Law Dictionary, 6th Edition at page 1447 defines it as “temporary withdrawal or cessation from employment as distinguished from permanent severance that is accompanied by removal”. Also in Akinyanju v. UniIlorin (2005) 7 NWLR (PT.923) 87, suspension is said to mean “to defer, lay aside, or hold in abeyance.” it also means “to halt midway but certainly not to bring to an end or terminate.” The Court of Appeal in SPDC NIG LTD vs. EMEHURU 2007 All FWLR Pt. 381 1694 at 1718 commented as follows on suspension of an employee- “when 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”. Also in UNIVERSITY OF CALABAR vs. ESIAGA 1999 4 NWLR Pt. 502 719 at 723, Suspension was defined as- “A temporary privation or deprivation, cessation or stoppage of or from privileges and rights of a person. The word caries or conveys a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling for a fixed or terminal period or indefinitely”. In view of these authorities, it is clear that suspension does not amount to termination of employment. An employee on suspension is nonetheless an employee until terminated. In this case, Exhibit CC5 put the claimant on an indefinite suspension and the defendants have not proved that the claimant’s employment has at any time thereafter been terminated. The defendants could not convince this court by evidence that the claimant was given any notice of termination of his employment. By the letter of indefinite suspension, without more, the claimant’s contract of service still subsists. His employment has not been determined at all. The claimant has therefore continued to be in the 1st defendant’s employment since the time of his suspension up till now. I find and hold that the claimant is still an employee of 1st defendant. In his submissions in his written address, the defendants counsel treated the claimant’s employment as having been terminated and he submitted, relying on OSISANYA vs. AFRIBANK case, that the claimant’s employment cannot be declared to be subsisting. With respect to counsel for the defendants, that is hardly the claimant’s case. The claimant’s case is that his employment has never been terminated but he was only on indefinite suspension. Had the defendants been able to show that the claimant’s employment had been terminated, then a declaration that his employment still subsists cannot be made. But the defendants could not prove the termination of the claimant’s employment. In the absence of that proof, this court has no option than to hold that the employment still subsist. See MOBIL PRODUCING NIG. UNLTD vs. UDO (2009) All FWLR (Pt. 482) 1171 at PAGE 1224, where the Court of Appeal made reference to Orojo’s Book on Nigerian Commercial Law and Practice Vol.1 page 552 paragraph 171 where it was stated that “subject to agreement, a contract subsists until determination.” The defendants pleaded certain allegations of fraud and incompetence against the claimant. In his evidence, DW3 testified that there were complaints of shortage in delivery of cement by transporters introduced by the claimant as a result of his collusion with them and the claimant was found incompetent in the discharge of the functions of his office, particularly in the delay to pay salaries to staff of the 1st defendant. On the day the claimant was suspended, search conducted on him revealed he had on him missing cards of “Ibeto Cement Authority to collect” belonging to the 1st defendant. Some other missing ATC were later, after the claimant’s suspension, traced to a 3rd party who confirmed the claimant gave it to him. There is also the allegation that the claimant, when on suspension, forged a transfer order of the defendants to Zenith bank for the payment of some monies to one Obi Tochukwu Donald. In the relationship between master and servant, these acts amount to misconduct for which the servant could be dismissed. But in this case, since these facts of the claimant’s activities came into the knowledge of the defendants, they failed to take a more drastic step by determining his employment but they merely placed the claimant on indefinite suspension and left it that way since February 2013. The defendants then went about assuming that the claimant’s employment has been terminated, even when, 3 months after the claimants employment was allegedly terminated, the defendant still described the claimant as being on suspension in the petition to EFCC. The defendants never took any step to determine the claimant’s employment and all the while, the claimant continued to be the 1st defendant’s employee who was on an indefinite suspension. I shall now address the claimant’s claim for salaries. He claims for his salary for the months of January, February and March 2013 at the monthly sum of 2,500 Euros and his salaries for every other month until this suit is determined. Put in another way, the claimant claims for salary from January 2013 before he was suspended and from the time of suspension till date of judgment in this suit. In establishing his entitlement to his salaries, the claimant testified that his consolidated monthly salary is the sum of 2,500 Euros. His salaries for January and February 2013 were not paid to him on the instruction of the 2nd defendant and the claimant protested the seizure of his 2 month’s salary to the 2nd defendant vide Exhibit CC4 but as a consequence, he was placed on indefinite suspension on 27th February 2013. He also testified that since he was placed on suspension, he has not been paid any salary or any allowances. The seizure of his salary has made him to default in the repayment of the loan he took from Diamond bank in which his salary account is domiciled which account he used as collateral for the loan. In paragraph 12 of his evidence in chief, DW3 testified that the claimant is not entitled to salary when he was being investigated by EFCC for fraud. He also stated that the defendants did not seize the claimant’s salary but it was the claimant that has rather defrauded the defendants and has not paid back. However, in paragraphs 13 and 14, DW said because of the incompetence of the accounts department, he issued the letter of 13/11/12 that the salary of the claimant and other account staff will be delayed unless staff in the company was paid. Notwithstanding this letter, the delay in payment of salaries of the 1st defendant’s staff continued and this led to the letter withholding the salaries of the claimant and other staff of the account department. I find this to be an admission by the defendants that the claimant’s salaries were actually withheld. Has the withheld salaries been paid to the claimant? DW3, under cross examination stated that he did not know if the claimant was being owed his January and February 2013 salaries before he was suspended because. The effect of this evidence by DW3 is that the defendants could not show that the claimant was at any time later paid his withheld salaries for January and February before he was suspended. Therefore, the claimant’s evidence that he has not been paid salaries for January and February 2013 is not controverted. The claimant was suspended on 27th February 2013 and from his evidence, he attended office last on that day. This means he worked in January and February 2013 before the suspension was handed down on him. He has earned the salary for these months before his suspension. The defendants contend that that the claimant is not entitled to salary claimed because he was being investigated by EFCC for fraud. I am not aware of any law that prescribed the denial of an employee’s salary merely because he was being investigated by a security agency. The only ground I know in the law of contract of employment when an employer can be justified to withhold an employee’s earned salaries is when the condition of service so provide. In this case, the defendant did not rely on any condition of service or prove any such condition of service which entitled them to withhold the claimant’s salaries. The consequence is that the defendants have no power or authority to deny the claimant the salaries he has earned. The claimant has proved that his monthly salary is 2,500 Euros. The defendants did not dispute the amount of claimant’s monthly salary. Since the claimant has worked for the salaries for January and February 2013, he has earned them and the salaries for these 2 months, at 2,500 Euros, should be paid to him. As for the claimant’s salaries from the period of his suspension till the date of this judgment, should he not be entitled to them since it has been found in this judgment that he is still in the employment of the 1st defendant? To answer this question, there is need to examine the status of an employee on suspension. In MOBIL PRODUCING NIG. UNLTD vs. UDO (SUPRA) at Pg. 1224, the Court of Appeal held that the case of Adekunle vs. Western Region Finance Corporation 1963 NWLR where the plaintiff was suspended from work on allegation that he was responsible for loss of some money belonging to the defendant. He was subsequently charged with criminal offence relating to the loss but he was discharged and acquitted for lack of sufficient evidence. The defendant then purported to dismiss the plaintiff with retrospective effective from the date of his suspension. Fatai Williams J., in his judgment referred to the case of Hanley v. Pease & partners Ltd where Rowlatt J. said- “The employer has no implied power to punish the workman by suspending him for certain period of his employment, the contract subsisting all the time.” Fatai William J. then held- “by merely suspending him from performing his duties, the defendant corporation has allowed the contract of employment to subsist during the relevant period and it is not open to them to put an end to it retrospectively … they cannot, in my view, escape liability for paying the plaintiff’s salary during this period by dismissing him retrospectively” In this case of MOBIL PRODUCING NIG. UNLTD vs. UDO, it was the opinion of the learned Justices of the Court of Appeal that during suspension, the employment continues to subsist and the employee is entitled to his salaries during the period except there is a condition of service which permits the employer to stay payment of salary during period of suspension. In a contract of employment, there is no implied contractual right on the part of the employer to suspend an employee without pay on disciplinary grounds. For there to be no pay, it must be expressly stated in the contract of service between the parties. See Chitty on Contracts, 25th Edition at page 683. Furthermore, whether an employer has power to suspend an employee depends on the terms of the contract of employment. Suspension will be wrongful if the employer has no power to suspend given by the contract, in such a case, the employee is entitled to wages he lost by being suspended. See ADEKUNLE vs. WESTERN REGION FINANCE CORPORATION (1963) NWLR 5. In this case, there is no evidence before this court that there is any laid down condition between the parties stating clearly the right of the defendants to suspend the claimant without pay. The defendants did not tender any such document containing such conditions of service. In the absence of such evidence, the consequence is that the defendants did not possess the right to under the contract of employment to suspend the claimant indefinitely without pay. Even then, the words used in Exhibit CC5 are plain and simple. The letter clearly reads “you are therefore placed on indefinite suspension with immediate effect until such a time as the investigations are completed. You are to hand over all official documents and duties under your care to the accountant”. There is no where it is stated or suggested in Exhibit CC5 that the claimant’s suspension is to be without pay. Without further delay on this issue, it has been resolved in this judgment that the claimant remains an employee of the 1st defendant till date, his employment not having been shown to have been terminated. It is also my view that the defendants have not proved that they have the power under the contract and in law to suspend the claimant without pay. Consequently, the claimant is entitled to his monthly salaries from the date of his suspension till the date of this judgment. In the final analysis and for the avoidance of doubt, my orders in this judgment are these- 1. It is declared that the claimant is still an employee of the 1st defendant. 2. The defendants are ordered to pay the claimant his salaries from the month of January 2013 till the date of this judgment at the sum of 2,500 Euros (or its Naira equivalent at the official Central Bank of Nigeria rate) per month. 3. The claimant’s cumulative salaries as ordered to be paid to him above shall be paid to him by the defendants within 30 days of the date of this judgment after which it shall attract interest at the rate of 10% per annum until it is finally paid to him. Parties are to bear their cost of litigation. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge