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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Tuesday 21th October, 2014 SUIT NO: NICN/ABJ/182/2013 Between: Temitope Oludunni Ajao Claimant AND Zenith Bank Plc. Defendant REPRESENTATION Claimant present. Defendant absent; Miss Ann Agi for the claimant; Olayinka Adedeji Miss for the defendant. JUDGMENT By a complaint dated the 3rd of July 2013 and filed on the 4th of July 2013, the claimant prayed the court for the following reliefs. 1) A Declaration that the suspension of the claimant by the defendant for fraud allegedly committed by a staff in her office after having been investigated and discharged by the Nigerian Police Force is wrongful, unlawful and illegal, and in flagrant breach and a violation of the terms of contract entered into between the claimant and the defendant; 2) A Declaration that the purported termination of the claimant’s appointment with the defendant is wrongful and illegal, and in flagrant breach and a violation of the terms of contract entered into between the claimant and the defendant; 3) An Order mandating the defendant to pay to the claimant all outstanding salaries /allowances from the period of suspension till the date her employment was purportedly terminated to wit: i. Salary for the period of July 2010 to January 2011 for six months @N208, 468.13 per month totaling N1,459,276.91. ii. Salaries for the period of February 2011 to January 2012 totaling N5,300,000.00 million. iii. Salaries for the period of February 2012 to January 2013 totaling N5,300,000.00 million. iv. Salary for the period of January 25th 2013 to February 2013 for two weeks in the sum of N220,833.30. v. Leave allowances for the following period. a. 2008 being N150,000.00 b. 2009 being N240,000.00. vi. Monthly Pension contribution for the 32 month period the claimant was still in the employment of the bank (July 2010 to February 2013) to wit: N728,200.96 (Seven hundred and twenty eight thousand, two hundred naira, ninety six kobo only) at N22,756.28 (Twenty two thousand, seven hundred and fifty six naira, twenty eight kobo) per month or evidence of remittance to Pension Fund Administrators. 4) An Order mandating the Defendant to present to the claimant her Tax clearance certificates of taxes deducted from the emoluments of the claimant for the entire period in which she was in the employment of the bank being from 2006 to 2013. 5) An Order mandating the defendant to pay to the claimant a severance package for terminating her employment. 6) An order mandating the defendant to pay to the claimant the sum of N14,235.43 (Fourteen thousand, two hundred and thirty five Naira, forty three kobo ) being the sum outstanding in her current account with No: 2014865506 which was closed on the 10th day of May, 2013 after the wrongful and unlawful termination of her employment. 7) An Order mandating the defendant to pay to the claimant the sum of N17,670,110. 21 (Seven Million, six hundred and seventy thousand, one hundred and ten naira , twenty one kobo) being general damages suffered for the wrongful and unlawful termination of the claimant’s appointment. 8) One month salary in lieu of notice –N441,666.7 and interest accruing from the said sum from the date of termination of the claimant ‘s employment till judgment is given. 9) The sum of N3,000.00 (Three Million Naira only ) being legal fees for the prosecution of this suit. The complaint is accompanied with a 38 paragraphs statement of facts and all other frontloaded processes in accordance with the rules of this court. The defendant entered appearance on the 5th of September 2013, filed its statement of 35 paragraphs with frontloaded processes as of defence demanded by the rules of this court. The claimant also filed a 40 paragraphs reply to the defendants statement of claim with frontloaded processes on the 18th of December 2013, the claimant opened her case by calling a lone witness in the person of the claimant herself who adopted her two witness statements on oath as her oral testimonies. The claimant tendered five documents namely: (1) Witness statements on oath Exhibit TOA 01 and TOA 02 (2) Offer of employment Exhibit TOA 03 (3) Letter of Appeal Exhibit TOA 04 (4) Nigerian Police Force Letter Exhibit TOA 05 (5) Letter to British High Commission by defendant on claimant is Exhibit TOA 06 (6) Letter of termination of appointment is Exhibit TOA 07. (7) Letter from CBN is Exhibit TOA 08 (8) Letter of Appeal to CBN is Exhibit TOA 09 (9) Letter from Ziongate Chambers to defendant M.D is Exhibit TOA 010 (10) Letter to claimant by Defendant dated 15th May 2007 Exhibit TOA 011 (11) Internal memo date 9th October 2009 is Exhibit TOA 012 (12) Internal memo from Internal control unit of defendant is Exhibit TAO 013. (13) Internal memo from claimant to defendant on Kye inquiry is Exhibit TOA 014 (14) Internal memo from defendant human resources department to claimant Exhibit TOA 015 (15) Internal memo dated 25th March 2008 Exhibit TOA 016 (16) Stanbic retirement saving account exhibit TOA 016A (17) Red Star way bill tracking Exhibit TOA 17A (18) Receipt of DHL Courier Exhibit TOA 17 B (19) Details of Red Star Tracking is Exhibit TOA 17C The claimant also testified that the first promotion was from Assistant to Senior Executive Assistant in 2008 while the 2nd promotion from Senior Executive Assistant to Assistant Banking Officer in 2009 were all done through the internet and she was not allowed to print it out from the internet. Claimant was cross examined after she prayed the court to grant her claims. During cross Examination claimant testified that she was employed as a staff in March 9th 2006 while she was suspended at the rank of Assistant Banking Officer in the Customer Service Unit. She gave the details of her job in the unit as attending daily to customers, prepaid and post paid ATM accounts etc the claimant stated that her duties included indicating whether or not a customer need alert notification but that the real notification of alert on account transaction is not done by her. The witness admitted knowing one Leonard Okoh, a Deputy Manager who was involved in fraud in the branch marketing department of the defendant. She testified how she was also invited to the police and how she was also invited by the defendant to Lagos to explain why the police detained her for three days. She stated that she had earlier gone to Lagos headquarters of the defendant for interrogation and to face a disciplinary panel before she was suspended in July in respect of the fraud. She testified as to how she did not know whether or not the defendant investigated the issue of fraud but that Leonard Okoh was her boss and she had no personal relationship with him. Mr. Okoh she stated did not buy her a car as she bought the car herself and register it in her sister’s name and celebrated the car and used it daily to work. She stated that she registered it in her sister’s name to hide the identity of the owner from her boy friend who was always on her neck for financial assistance. Other people in connection with the fraud along with Mr. Leonard Okoh were interrogated as she did not forward the police report of the fraud which is Exhibit TOA 015 to the bank. At the disciplinary panel in Lagos, the witness stated how she explained how the inflow into her account came about such as the N1.320M Naira came into her account thus; (1) N600,000 to boast her account for the purpose of seeking visa at the Belgium embassy. This amount was returned to Mr. Leonard Okoh. (2) N450,000 was an instruction from him to pay to a customer when Okoh was on vacation (3) N260,000.00 was a refund of loan given by the claimant to Mr. Okoh (4) N10,000 was for the payment of a pair of suit bought from the claimant by Mr. Okoh. The claimant contended that the above represents the inflow into her private account and denied ever doing any financial transaction for Mr. Leonard Okoh. All these, she said were explained to the disciplinary committee in Lagos. The witness who opened a prepaid visa card account for Mr. Okoh in her normal course of duty has instruction to tie this pre paid visa card to any account from the bank as the prepaid visa card can stand on its own as an account as you don’t need an existing account before having prepaid visa card and it is for both existing and walking customers and Leonard Okoh has an account with the bank. She stated that all her unit staff treat customers request and Aso Savings and Loans Ltd wanted a notification but she was never sent or given that request by Stella, operation unit staff who treated the request. She stated that it was only at the disciplinary committee in Lagos that such information was brought to her attention and confrontation. The fraud of N7 Billion perpetrated on Aso Savings and Loan Ltd account was done without the customer knowing as there was no alert. The claimant stated further that all notification request brought to her receives all necessary attention. She however testified that she was suspended indefinitely because the bank wanted to investigate the uncoordinated handling of Aso Saving and Loans account in the branch and her appointment was terminated while she was on indefinite suspension. She identifies IBTC Pension Manager as her pension fund administrator as her deduction are reflected in Exhibit TOA 016. she stated that the defendant did not give her any page to identify or documents to show or reflect any tax deduction from her salary in Federal Inland Revenue Service (FIRS). The witness was suspended on 19th July 2010 and was not paid throughout the period of suspension till February 2013 when she was terminated. On the 18th of February 2014, the claimant was recalled wherein her additional witness statement on oath was adopted, tendered and admitted as Exhibit TOA 018, the Salary Structure for ABO, Internet print out is Exhibit TOA 019. The defence opened on 18th February, 2014 with the testimony of Tony Makwe, a legal officer with the defendant. He identified his witness statement on oath adopted it as his oral testimony tendered and admitted as Exhibit TOA 20. The witness also tendered the following documents which were admitted in evidence; (a) Certify True Copy (CTC) of internal memo from disciplinary Committee Exhibit TOA 21 (b) Letter to CBN on Re: Petition Exhibit TOA 22 (c) Certify True Copy (CTC) of letter on termination of appointment Exhibit TOA 23 During cross examination, Mr. Makwe testified that he is a solicitor and employed by the defendant in June 2007 and he is seized of the fact of this case. He stated that the claimant was employed and confirmed as Executive Assistant and at the time of heading the Customers Service Unit (CSU) she was an Assistant Banking Officer (ABO) and he could not remembered her salary package but the total package as Assistant Banking Officer was N5.3M but was subsequently reviewed downwards for all grades of staff in March 2009 and he could not give the salary breakdown. He further stated that she was operating a pension scheme during her employment with the defendant and deductions were made from salary into the pension Accounts. He further testified that the claimant was suspended because of her inability to prevent a fraud in the customers service unit relating to alert notification as she compromised her duty in that respect and on proper investigation, she and other staff were disciplined. The witness stated that the internal control of the defendant and the legal unit of the defendant handled the investigation while the police handle the other aspect of the fraud investigation. He stated that the claimant was not the principal suspect as the principal suspect was at large as the police report Exhibit TOA 05 did not link the claimant with the fraud. The witness referred to Exhibit TOA 21 which is the internal disciplinary committee report which indicted the claimant. The witness linked the N1.7M found in the account of the claimant with the fraud perpetrated by one Leonard Okoh, a Deputy Manager with the defendant and that the claimant bought a car with the proceed of the fraud as was found out by the disciplinary committee report in Exhibit TOA 21 Mr. Makwe testified that the Visa Card account opened for Mr. Okoh by the claimant who was in charge of the customers service unit at the material time was used as a conduit pipe for the perpetration of the fraud of N7 Billion. The witness stated also that Stella Chidi Onyemali did not admit any negligence in the alert notification form as she made a report to the claimant on the Aso Savings and loans account on how she acted on this notification. Witness stated that the police did not say that the close tie between the claimant and the Leonard Okoh facilitated the fraud as the claimant who has no direct link with the Aso Savings and Loan is not the relationship manager in respect of the account in which the fraud was perpetrated. The claimant, he stated was not charged to court because there was no evidence against her while the othe staff were prosecuted in the court of law. On the 11th March 2014, the claimant was recalled again by her counsel and her additional witness statement on oath was adopted, tendered and marked as Exhibit TOA 024 and the three letter written on claimant’s behalf to the embassy are exhibit TOA 25 A – C. On cross examination by the defence claimant stated that Exhibit TOA 25 A-C were issued to facilitate her visa in the embassy. The internet print she said, do not have her name on it but it was written by the defendant to everyone in that grade and her salary as Assistant Banking Officer is reflected therein. Counsels later filed and adopted their written addresses. The defendant in its written address formulated four issues for determination namely: (1) Whether the suspension and subsequent termination of the claimants employment was wrongful and unlawful (2) Whether this Honourable court is vested with the powers to order defendant to pay to the claimant a severance package. (3) Whether or not the claimant is entitled to severance package interest accruing from salary in lieu of notice and the sum of N17,6 70.110. 21 (4) Whether the claimant has proved her case to entitle her to the relief sought. One issue one, counsel cited the case of Obu Vs. NNPC 2003 2 NWLR Pt. 805 pg 589 where the court held that the basis of employment relationship which is the terms and condition of the contract of employment forms the bed rock on which the rights of the parties can be decided by the court. Counsel contended that the claimant did not plead and lead evidence on the employee hand book but only tendered and pleaded the offer of employment letter Exhibit TOA 03. Counsel submitted that procedure for bringing contract to an end are normally stated in the hand book and not in any other law when it comes to master/ servant relationship as in this case. The counsel calls in aid the case of Isievwore Vs. NEPA 2002 13 NWLR Pt. 784 at 417. It is the terms and condition of a contract that determines whether or not there is a wrongful termination as the court will look at it and see how it is breach if the claimant places the terms before it. The case of Famakinwa Vs. T.A. Nig Plc 2007 WRN Vol. 18 36 at 40 was referred to before counsel. Counsel contended that Exhibit TOA 03 does not exhaustively contain the claimants terms and condition as leaving out the handbook is fatal to the claimants case as Exhibit TAO 03 is just an offer. Counsel contended further that the employer is not bound to give reason for termination of employment where such employment is not statutorily flavoured. Counsel call in aid the case of Atidie Vs. Kabal Metal 2008 10 NWLR Pt. 1095 399 at 419. Counsel to the defendant Olayinka Adedeji contended further that the claimant who brought up the issue of fraud and theft could not sustain it by referring the court to the procedure for termination base on those factors as stated in the handbook as Exhibit TOA 07 which is the termination letter did not mention any reason for the termination. Counsel submitted that suspension given to the claimant to pave way for investigation is a recognized standard practice which has been judicially approved in the case of FBN Vs. Longe 2006 3 NWLR (Pt 967) 228 at 265 It is the further submission of counsel, Mrs. Adedeji that an employer need not wait for the result of criminal trial in court before dismissing a staff whose conduct is found to be unacceptable to the employer. She called in aid the case of NITEL Vs. Awala 2004 1 NWLR 82 at 92. She further stated that the employer has the right to remove the employee if the conduct is found to be negligent. Counsel referred to Exhibits TOA 13 and the content therein and urged the court not to accept the testimony of the claimant as either he was ignorant or not telling the truth to the court. This position, counsel said, could also be said of the claimants testimony when view side by side with Exhibit TOA 21 relating to Stella Chidi Onyemali. All these goes to show that the claimant was negligent as a unit head and therefore, rightly terminated by the defendant, the counsel urged. On issue 2 counsel submitted that a staff on suspension has his/her employment including the terms and condition on hold and that where a claimant is found culpable after investigation and is terminated, she is no longer entitled to a notice or a salary in lieu of notice. Counsel referred the court to the case of SPDC Nig Ltd Vs. Emehuru 2007 5 NWLR Pt. 1027 347 at 376. Counsel submitted further that the claimant is not entitled to salaries for the period of suspension since she was given a notice of suspension. It is the further argument of the defence counsel that where a disciplinary panel set up by the defendant indicts the claimant for misconduct and negligence in her duty as an employee, the employer is at liberty to terminate the relationship by bringing the contract to an end without notice. Counsel cited the cases of Osisanya Vs. Afribank Nig Plc 2007 6 NWLR Pt. 1031 at 565 at 584; Nwobosi Vs. African Continental Bank Ltd 1995 6 NWLR Pt. 404 656. On issue three and four argued together by counsel, it was submitted that the claimant could not lead any evidence in relation to severance package, outstanding salary arrears and any balance in her current account and should be treated as abandoned pleading in the absence of any evidence. Counsel referred the court to the cases of Nsiegbe Vs. Mgbemena 2007 10 NWLR (Pt. 104 2 ) 364 at 390-391 Nsirim Vs. Nsirim 2002 3 NWLR Pt 755 697 at 711. It is also submitted that since the claimant has not requested for payment from IBTC Pension Managers and Stanbic IBTC Pension Manager are not joined as parties to this suit, the court should not grant the prayers. It is also counsel’s contention that the inconsistencies in the salaries as contained in the complaint, the statement of facts and additional witness statement on oath of 3/2/14 and Exhibit TOA 016, all goes to no issue and should be discountenance as such inconsistent evidence is not in support of any issue. Counsel finally urged the court to hold that the claimant has not proved her case to entitle her to Judgment. In His written address, the defence counsel Mr. Femi David Ikotun formulated 6 issues for determination namely: (1) Whether the “indefinite suspension without pay” of the claimant was wrongful, unlawful and illegal and in fragrant breach and violation of the terms of contract entered into between the claimant and the defendant. (2) Whether the termination of the contract of employment of the claimant by the defendant was wrongful. (3) Whether the eventual termination of the claimants employment can be divorced from the allegation against her of misconduct/malpractice and aiding the commission of the syndicated fraud in the branch of the claimant. (4) Whether or not the claimant is entitled to her salary and allowances during the period of the suspension and damages for wrongful/illegal suspension (5) Whether the claimant is entitled to damages for the wrongful termination of her contract and the quantum of damages she should receive (6) Whether the claimant is entitled to the other head of reliefs as per her statement of facts. On issue one, Ikotun Esq. submitted that non statutory flavoured employment like the one under consideration are governed by the terms of the contract as contained in its terms and conditions. Counsel referred the court to the cases of Iderima Vs. R.S.C.S.C 2005 All FWLR (Pt. 285) 431 at 446; Mobile producing Nig. Unltd and Another Vs. Udoh 2009 All FWLR Pt. 482 P. 1177 at 1224. Counsel also cited the case of Igwilo Vs. CBN 2007 All FWLR Pt. 379 P. 1385 at 1403 which held that where the contract of employment stated one month suspension and the employee was suspended for Eight months contrary to the manual for staff, such suspension was null, void and of no effect. Counsel further contended that since there is no evidence before the court entitling the defendant to suspend the claimant for so long as in this case, the suspension should be declared null and void. Counsel further referred to the protection of the claimant guaranteed by the 1999 constitution on the presumption of innocence in favour of the claimant on the issue of allegation of crime which the claimant was exonerated after due investigation by the police as reflected in Exhibit TOA 05. The disciplinary Committee report Exhibit TOA 021, a product of the defendant and duely tendered by them, counsel submitted was concluded, documented and communicated since May 26 2010 but was not implemented but rather the claimant was suspended indefinitely on July 16 2010, about 2 months after Exhibit TOA 021, the disciplinary report, which shows clearly the injustices perpetrated against the claimant by the defendant. The length of suspension, the claimant counsel argued being 2 years 7 months was clearly an unlawful act, oppressive, in bad faith and should not go without legal remedy. To this extend counsel argued, the claimant kept faith with the suspension order, stayed around and kept her telephone opened for more than two years without seeking alternative employment hoping for a recall only to be terminated when she wrote an appeal on indefinite suspension which is Exhibit TOA 04 dated 9th January 2013. Counsel call in aid the case of S.P.D.C. Nig Ltd Vs. Emehuru 2007 All FWLR Pt. 381 P. 1718 Gbadegesin Vs. Wema Bank Plc Suit No. NIC/57/2008 delivered on 23rd February 2012; Dayo Buloro Vs. Nigerian Institute of Public Relations Suit No. NIC/LA/23/2009. Delivered on April 14 2011 and urged the court to hold that an employee should not be kept under suspension indefinitely without initiating and concluding disciplinary proceedings against him. It is the further contention of counsel that the failure of the defendant to place before the court a staff manual or other condition of service justifying the action of the defendant on the issue of long suspension is fatal to the case of the defence and therefore section 167 of the 2011 Evidence Act as amended should be used against the defendant as they have withheld the evidence unfavourable to them. On issue two, counsel urged the court to consider Exhibit TOA 03 to see the terms of the contract and how it has been breached by the defendant and therefore hold that the claimants termination was wrongful. Section 11 of the Labour Act counsel submitted should be apply to limit the period of notice required by the defendant to one month. Counsel also called in aid the authorities of Chukwumah Vs. SPDC Nig Ltd 1993 4 NWLR Pt. 289 at 103; Longe Vs. FBN Plc 2010 All FWLR Pt. 525 309 -310; NNPC Vs. Evwori 2007 All FWLR (Pt. 369) 1324 at 1343. Counsel submitted further that the suspension of the claimant do not translate to the termination of his rights under the contract of employment. Counsel referred the court to the decision of the Supreme Court in the case of Longe Vs. FBN PLC Supra. Counsel also submitted that the issue of fraud pepetrated by one Leonard Okoh the Customers Relation Manager of Aso Savings and Loans Ltd cannot be connected to the claimant in anyway in view of Exhibits TOA 013, the testimony of DWI and Exhibit TOA 021 and urged the court to hold that the claimants termination was wrongful. On issue three, Mr. Ikotun invited the court to Exhibits TOA 07, TOA 022, TOA 022 015 and to hold that the act of tying the claimant to the issue of fraud and terminating her on that basis without stating such a reason in the letter of termination Exhibit TOA 07 was based on mere suspicion. Where the defendant gives a criminal allegation as reason for termination, counsel argued, such allegation or reason must be established and the claimants capability determined before termination of employment can be done. Counsel cited the cases of Shuaibu Vs. UBN PLC 1995 4 NWLR (Pt. 388) 178; Strabag construction Nig Ltd Vs. Adeyefa 2001 FWLR (Pt. 60) PP. 1555-1556. Counsel urge the court to rely on the case of Onoguruwa Vs. State 1993 7 NWLR Pt.303 P. 49 to hold that suspicion, no matter how strong cannot replace legal proof. On issue 4, counsel submitted that the claimant is entitled to the salaries and allowances for the period of suspension on the basis of the fact that there is no provision for suspension without pay in the contract of employment between the claimant and the defendant and the case law authorities do not support the action of the defendant as the claimant can sue for the wages during the period of suspension. Counsel relied on Chitty on contracts 25th Edn P. 683, Lasisi Gbadegesin Vs. Wema Bank Plc (Supra). Counsel also referred the court to Exhibits TOA 06, 018, 019, 025 A-C where issue of salaries and benefits were specifically proved and has been so specifically pleaded as held in Ihabuhmb Vs. Anyip 2011 12 NWLR (1260) I. Mr. Ikotun also argued that the claimant was entitled to general damages for unlawful and unwarranted suspension. He cited the case of Miaphen Vs. Unijos Consultancy Ltd 2013 LPELR 21 904 (CA); counsel also stated that since general damages need not specifically pleaded and proved, the court is left with the absolute discretion on the quantum as such damages flow directly from the breach of contract. The defendant, counsel contended never contradicted the testimony of the claimant on the issue of salaries and entitlement and as such the court should believe the claimant testimony as held in the cases of Uket Vs. FRN 2008 All FWLR PT 411 at 937; Alagbe Vs. Abimbola 1978 3 SC 39. On issues 5 and 6 argued together, counsel submitted that the claimant who was terminated with a stigma of involving or aiding fraud when she is not involved is entitled to payment of damages beyond the payment for wrongful termination. Counsel cited the cases of Ezekiel Vs. Westminister Dredging Nig Ltd 2009 9 NWLR Pt. 672 248 Counsel also urged the court to award quantum of money as Severance benefits in accordance with the terms of the contract and the tax deduction ship evidencing tax remittance should be issued by the defendant to the claimant In addition, claimant counsel also submitted that since she is claiming salary and allowance for the period of suspension, the monthly pension contribution should also be remitted to the pension fund administrators account provided for that purpose by the claimant On the issue of outstanding balance in claimants current account kept with the defendant which was closed upon termination, counsel urged the court to hold that such unilateral closure of account is unlawful and should be open or defressed since the defendant has not denied it; counsel finally urge the court to grant the prayer of cost of this suit in favour of the claimant; and to also grant all the prayers of the claimant in her reliefs. I have painstakingly heard learned counsel and considered all the processes filed in this case. The fact of this case is that the claimant was employed by the defendant in March 9th 2006. Her employment was confirmed on the 15th of May 2007. A fraud was discovered in March 2010. The fraud was investigated by the defendant internal mechanism after the police investigation which exonerated the claimant. The investigation in question were carried out around May 12th 2010. The internal disciplinary panel that carried out the coordinated fraud investigation submitted its report dated May 26th 2010 wherein the claimant was recommended for termination. Instead of carrying out the recommendation the defendant decided to suspend the claimant about two months thereafter indefinitely on the 16th of July 2010. The claimant was on this indefinite suspension during which time, she petitioned the Central Bank of Nigeria and equally wrote a letter of appeal to the management of the defendant drawing attention to her indefinite suspension for not less than two and a half years as the indefinite suspension was without pay. On the 11th of February 2013 her employment was terminated through a letter. She also received a letter on the same date from the Central Bank of Nigeria (CBN) assuring her that her petition was being looked into and that the defendant shall revert to her in due course. The claimant therefore approach this court claiming sundry reliefs as earlier indicated in this judgment. The law is that civil cases are determine on the balance of probabilities. It is the primary duty of this court to place each of the parties case on an imaginary scale of justice to determine where the scale tilt more in weight. The fate of every case depends on the pleadings and the evidence led in support as he who alleges must prove. See the case of Esiegbe Vs. Agholor 1993 9 NWLR Pt. 316 at 150. The duty therefore of the trial court is to assess the evidence before him to see whether or not the claimant has sufficiently discharged the burden of proof in a case. See Leventis Motors Ltd Vs. Nunieh 1999 13 NWLR Pt. 634 235. The lone question that calls for determination then is whether or not the claimant has proved his case based on balance of probabilities and preponderance of evidence to entitle her to judgment in all the heads of claims? The argument of the defendant is that the claimant has failed to prove her case and so she is not entitled to any of the reliefs claimed. Now, by NRW Ind. Ltd Vs. Akingbulugbe 2011 11 NWLR Pt. 1257 (CA), an employee who seek a declaration that the termination of her employment was wrongful must prove the following material facts (a) That she is an employee of the defendant (b) The terms and conditions of his/her employment (c) The way and manner and by whom he/she can be removed (d) The way and manner the terms and conditions of his/her employment were breached by his/her employee It is not the duty of the employer to prove any of these facts. See the case of Afribank Nig Plc Vs. Osisanya 2000 I NWLR Pt. 642 592 CA Adams Vs. LSDPC 2000 5 NWLR (Pt. 656) 291; Kabel Metal Nig. Ltd Vs. Otivie 2002 10 NWLR (Pt. 777) 250 and Emokpae Vs. Uniben 2002 17 NWLR (Pt 795) 139 It is also the law that more than one document may make up the terms and condition of service in a contract of employment. See also the case of Ladipo Vs. Chevron Nig Ltd 2005 1 NWLR (Pt 907) 277 (CA) Throughout the trial, there is no evidence of handbook before the court. In this wise, the only document containing the terms and condition of the employment potent enough for consideration of the court is the letter of employment which is Exhibit TOA 03. In employment matters generally, the staff handbook usually contains the way and manner i.e discipline is to be carried out; The procedure of discipline. It could also contain other sundry terms and conditions additional to the ones contained in the letter of employment or appointment. There is no argument as to the requirement of whether or not the claimant was employed by the defendant. Both parties are ad idem on that point. The terms and conditions are contained in Exhibit TOA 03. The way and manner the claimant can be removed and how it is breached is at the door step of the claimant. Has the procedure been breached; Exhibit TOA 03 says; “………….. After confirmation of your employment, you may resign your appointment with the bank subject to giving the bank one month notice or paying the bank salary in lieu of notice” It is amazing that nothing is said about the reverse, i.e the defendant/bank terminating the employment of the claimant and the way and manner it should be done. The Exhibit TOA 03 also says “You will be bound by the existing general condition of service of the bank and any future amendment” The question is where are the existing general conditions of service of the bank. The claimant said, the defendant gave her no handbook yet the defendant made reference to general condition of service. Once again, on the issue of notice section 11(i) of the Labour Act Law of Federation of Nigeria (LFN) 2004 says “Either party to a contract of employment may terminate the contract on the expiration of notice given by his intention to do so Section 11(2) says The notice to be given for the purposes of subsection 1 of this section shall be “……………one month where the contract has continued for five years or more”. From this portion of the quoted law, it follows that the defendant is bound to give one month notice or one month salary in lieu in accordance with section 11 of the Labour Act. On issue of termination, the letter of employment ie Exhibit TOA 03 did not state how the claimant contract can be brought to an end by the defendant. Under common law, however, it is trite law that in a master/servant relationship, the employer can terminate the employees contract of employment with or without reason. By Afribank Nig Plc Vs. Osisanya 2000 1 NWLR (Pt 642) 59 2 CA, an employer is not bound to give reasons for terminating the appointment of his employee. However where the employer gives a reason for the termination, the onus lies on the employer to establish that reason. See also the case of Angel Shipping & Dyeing Ltd Vs. Ajah 2000 13 NWLT Pt 685 532 CA DW1 stated in his evidence that the termination of the claimant was based on Exhibit TOA 021 and 022 In the said Exhibits, the claimant was indicted for having personal tie with Leonard Okoh and aided him in transfer of funds and was a beneficiary of funds which she could not account for; This was the content of Exhibit TOA 022 which is a letter to the Central Bank of Nigeria (CBN) by the defendant sequel to the petition of the claimant on her indefinite suspension of more than 2 years without pay. Exhibit TOA 21 which is the disciplinary committee report of the defendant who investigated the fraud reported as follows: “The committee agreed that Ajao Temitope Oladunni knew more than she has revealed as it was obvious she was very close to Leonard and she had aided Leonard in carrying out some transaction. Consequently her appointment should be terminated” The question then is, why should it take 2 years and Eight months for the defendant to act on this report? Moreover, when this report in Exhibit TOA 021 was communicated to defendant management, why did they decide to suspend her indefinitely rather than termination? Worse still, the claimant provided explanations on how N1.7Million Naira came to her account and how it was utilized? Was any further investigation conducted on this explanations to ascertain the truth or otherwise of these claims? If not, why not? The claimant also explained how she saved money to purchase a car when the KYE enquiry on staff related transaction was done in October 12 2009. Why did the committee decide to ignore this facts as stated in Exhibit TOA 14? Once a reason for termination is given as in this case, the claimant has the right to contest that reason. I think, this is what the claimant has just done; Where did the defendant derive the power to suspend the claimant indefinitely for 32 months without pay? There is no evidence before the court produced by the defendant to justify its position; The defendant did not produce any handbook containing such procedure to be adopted in bringing the contract to an end neither has it supply any document to assert its position that the alleged fraud in which the police exonerated the claimant in Exhibit TOA 05 entitled it to so act. Where a claimant has shown from evidence that the defendant acted contrary to justice in the termination of her employment, the burden is therefore shifted to the defendant to show through credible evidence that it acted within the bounds and the provision of contract of employment; All what the claimant need to do in this respect is to raise a prima facie evidence that the termination was unfair, wrongful and not in good faith: The defendant in my view has not raised or supplied any evidence that the long suspension without pay was permitted by the condition of service. In fact, the question that keep ringing bell and begging for answer is why should the defendant suspend the claimant for 32 months indefinitely without pay after the receipt of Exhibit TOA 21 which recommended termination? On this basis, I hold that the long suspension of the claimant without pay for 32 months is unfair labour practice contrary to section 254(c)(i)(f) of the 1999 Constitution as amended. It is also contrary to International labour standards. It is also contrary to the principles of Equity as this court is enjoined to administer equity. See section 13 of the National Industrial Court Act 2006. The defendant contended that there was a downward review of salary of all staff including the claimant. I do not see any such evidence in the trial to attach any credibility or probative value to it. The claimant made copious and vehement submission on the issue of severance allowance and legal fees. Throughout, the trial, there is no evidence led to justify any consideration of such a claim. The letter of employment do not contain any condition relating to such benefits and all the exhibits tendered has not elicited such evidence to warrant the courts attention. The issue of legal fee is an issue bordering on special damages and by several authorities it is trite law that where it is not proved specifically with particulars such claims fails and I so hold; The claimant also claimed for issuance of tax clearance certificate containing deduction from the emolument; Issues of tax are not subject to the jurisdiction of the National Industrial Court and as such I do not have jurisdiction to make any pronouncement on tax law. On the issue of monthly pension contribution, it was held in this court in the case of Sunny I Okwudaishi Vs. Constain West Africa Plc 2011 23 NLLR Pt 65 299 that an employer is suppose to remit all pension contributions to pension fund administrators of the employee if the account for that purpose is known by the employer. I am satisfied by Exhibit TOA 16 A that the employer is aware of the pension account of the claimant. Since the Pension Reform Act does not envisage that pension contribution would be paid directly to an employee by the employer, any deducted sum for the purpose should be remitted to pension accounts. Where the termination of a contract of employment violates the term or condition of the contract such termination is wrongful. The claimant was suppose to be given one month notice or salary in lieu but she was not given. See the case of Ajayi Vs Texaco Nig Ltd 1987 3 NWLR (Pt 62) 577 SC. The employee in that circumstance is therefore entitled to what is due to him/her for that period of notice. See the case of Isiovwore Vs. NEPA 2002 13 NWLR (Pt 784) 417 SC On the issue of leave allowance, Exhibit TOA 19 coupled with the claimants testimony goes to show that leave allowance is part of the salary structure for Assistant Banking Officers (ABO) and since Exhibit TOA 19 took effect from 1st July 2008, I hold that the claimant is entitle to it as this exhibit forms part of the conditions of service as it is headed “Salary Structure for ABO”. On the issues of freezing of the claimants current account, I hold that since this borders on Banker/Customer relationship which is govern by the Law of Banking, the jurisdictional mandate of this court do not contemplate jurisdiction of this court over Banking matters and as such I have no jurisdiction to make any pronouncement on it; Suspension of an employee in law means stoppage of the performance of duty. It operates to suspend the contract. It does not mean that the employee is no longer a staff. A staff on suspension is still an employee. See the case of Longe Vs. FBN (Supra) The suspension of the claimant from 16th July 2010 to February 11th 2013 means the claimant was still in employment only that her duties were suspended. The manner in which the suspension was effected did not suggest the defendant intended to bring the contract to an end immediately. This is so because Exhibit TOA 21 recommended termination on 26th May 2010. The defendant choose to suspend on 16th July 2010. The termination only came on 11th February 2013 along with a letter raising the hope of the claimant (Exhibit TOA 08) when the claimant wrote an appeal letter to Central Bank of Nigeria (CBN) management (Exhibit TOA 09). In fact the claimant also wrote an appeal letter Exhibit TOA 04 to defendant management dated 30th June 2011 but received on 6th July 2011, yet the defendant did not deem it fit to terminate her employment. The totality of this goes to show that the defendant did not want the claimant terminated until 11th February 2013. Moreover Exhibit TOA 15 says “….. During this period, you are to keep your phone lines open and remain in Abuja for easy accessibility” During this period here means during the period of the claimants indefinite suspension. She was to stay in Abuja for 32 months and she obeyed. She was to keep her telephone lines open for these months and she did, until the defendant comes up with a letter on 11th February 2013 terminating the contract; Consequently, I hold that the contract subsist until 11th of February 2013. On the issue of the emolument of the claimant, the evidence before the court shows in Exhibits TOA 19, TOA 025 A – C that the claimant earns a total of N5.3Million per annum. This fact was not in any way controverted by the DW1 in his oral testimony or his Exhibit TOA 20. In fact the statement of defence did not have any specific denial. Unchallenged evidence need no further proof and the court is duty bound to accept the evidence in so far as the evidence is not unreasonable. See the case of Omorogbe Vs. Lawani 1980 3 – 4 SC 108. From the totality of all the reasoning and conclusion in this judgment issues one of the defendants counsel written address taken together with issue one, two and three of the claimants counsel written address will lead to the irresistible position that the suspension and termination of the claimant by the defendant in the circumstance was wrongful. On issues two and three of the defendants written address, taken together with issue 6 of the claimants counsel written address, I hold that the claims on those heads of reliefs fails. Consequently judgment is hereby entered as follows (1) The indefinite suspension of the claimant by the defendant without pay from 16th July 2010 to 10th February 2013 is wrongful. (2) The termination of the claimants appointment by the defendant on the 11th day of February 2013 without giving her one month notice or one month salary in lieu is wrongful. (3) The defendant is hereby ordered to pay claimant the one month salary in lieu of notice. (4) All the salaries and allowances from the 16th of July 2010 to the 11th of February 2013 should be paid by the defendant to the claimant forthwith. (5) All the monthly pension contribution covering these period of indefinite suspension should be remitted to the claimant pension account immediately. (6) The issue of tax remittance certificate, severance allowance, defreezing of claimant current account and payment of legal fees all fail and is hereby refused. (7) I award N30,000.00 cost in favour of the claimant but against the defendant. This judgment shall be satisfied within 30 days of which failure shall attract 10% interest per annum. ----------------------------- Hon. Justice P.O Lifu (JP.) Judge