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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 10TH FEBRUARY, 2015 Suit No. NICN/ABJ/278M/2014 BETWEEN DANIEL INYANG CLAIAMNT AND ZENITH BANK PLC DEFENDANT REPRESENTATION B. O. Nafagha Esq with Edward Iheoahan Esq for the Claimant. Dr. Soni Ajala Esq, Ikechukwu Ekene Esq and Obinna Ugwu Esq for the Defendant. JUDGMENT By the amended statement of facts dated 30th January, 2013 and filed on the 31st January, 2013 the claimant claims against the defendant the sum of N6,857,138.19 (Six Millions, Eight Hundred and Fifty-seven Thousand One Hundred and Thirty-eight Naira Nineteen Kobo) Only as follows:- (a) i. Salaries for July 2010 - March 2011(9months) = N3,100,563.19 ii. Housing Allowance deductions = N1,097,266.64 from April – November, 2011 (8 months) iii. Dressing Allowance deductions from April – November, 2011 (8 months) = N129,533.36 iv. Christmas Bonus for 2010 = N78,925.00 v. Holiday (Leave Bonus Allowance) = N157,850.00 vi. Transfer Allowance (Cumulative) = N473,000.00 vii. Profit Sharing (PS) 2010 = N1,820,000.00 (b). The sum of N500,000.00 representing the cost of litigation. (c). The cost of filing this suit. Attached to the amended statement of facts are witness statement on Oath, list of witnesses and list of documents to be relied upon at the trial. The defendant entered memorandum of appearance dated 30th October, 2012 and filed on 6th November, 2012. Subsequently, the defendant filed other processes, the amended statement of defence, witness statement on Oath and list of documents to be relied upon. The matter went on trial, the claimant testified and tendered Exhibits. The defendant called a witness Mr. Anthony Makwe a legal officer with Zenith Bank Plc. On the 13th of May, 2014 parties adopted their final briefs of argument. In adopting the defendant final written address, the learned counsel for the defendant raised two issues for the determination of the court:- i. Whether from the totality of the evidence adduced by the claimant vis-à-vis the defence put forward by the defendant, the claimant has by credible evidence proved his claim as to be entitled to same. ii. Whether the failure by the claimant to either challenge and/or controvert the issues raised by the defendants in their statement of defence and adopted in evidence does not amount to an admission by the claimant of the said issues. He who asserts the affirmative has the burden to prove same. This position of the law is aptly captured by the provision of Section 136 of the Evidence Act 2011 which provides thus:- 1. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other. 2. In considering the amount of evidence necessary to shift the burden of proof, regard shall be heard by the court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively. To buttress this stand the learned counsel for the defendant referred to the following cases:- Further to the above, the Supreme Court in the case of Texaco Overseas (Nig.) Pet. Co Unltd V Rangk Ltd (2009) All FWLR (Pt. 494) P. 1520 @ P. 1535 Paras E – G where it was held thus:- Burden of proof in civil cases rests upon the party whether plaintiff or defendant who substantially asserts the affirmative of the issue. The Supreme Court also in the case of Mozie V Mba Malu (2006) 27 NSCQR, P. 425 @ 474 Per M. Mohammed categorically held that:- The law is that it is a plaintiff whose case must fail, if evidence is not called, that must lead evidence in proof of his case. The situation only changes if there are admissions made by a defendant on the pleadings. See generally Vulcan V Gesellschaft (2001) 26 WRN 1 P.83. The learned counsel then went to consider the claimant’s sub-claims i, iv, v, and vii he also referred the court to the case of Spring Bank Plc V Babatunde (2012) 5 NWLR (Pt. 1292) P. 83 where the Court of Appeal held that:- A servant who has been unlawfully dismissed cannot claim his wages for services never rendered. In this regard, it is the defendant argument that the claimant having not rendered any service to the defendant during the period in question cannot be heard to claim the wages for the services he never rendered. Supporting the stand with the case of Longe V FBN Nig Plc (2010) 6 NWLR (Pt. 1189) P 1 the Supreme Court in defining the term and import of suspension held thus:- Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contact in force between the employer and the employee but there is neither work being done in pursuance of it nor remuneration being paid. Counsel then said that in the light of the above, decision of the Supreme Court, that the claimant who never challenged his suspension from work nor worked for the defendant while the suspension subsisted cannot be heard laying claim that he is entitled to salaries and other benefits for the period of his suspension when in fact he never worked for the defendant. Further that the claimant in proof of his sub-claims vii, tendered in evidence Exhibit L wherein it was specifically stated that ‘productivity bonus will be payable based on performance’. This however, alone goes a very long way to discredit the claimant’s claim for what he described as profit sharing in his complaint. Counsel said that both Exhibits A and L are highly very silent on what the claimant described as “profit sharing”. Thus, in the case of CBN V IGWILO (2007) 14 NWLR(PT. 1054) P. 393, the Supreme Court held that:- Where a contact including the contract of employment involves several documents, the trial court can only determine issues before it on the basis of the documents including letters relating to the contract and conduct of the parties. That based on the above decided authority counsel urged this court to discountenance the claimant’s sub-claim iv, for having no bearing with the terms of the claimant’s employment with the defendant as the documents relating to the claimant’s employment with the defendant commonly suggest. Drawing also from the decision above, the term Christmas bonus’ as contained in both Exhibits A and L, respectively are bonus payable for employees of the defendants who are actually doing some work for the defendant as at a particular Christmas season. The claimant here who admitted in his pleading that he was on suspension from work from the 16th day of July, 2010 to 23rd day of March,, 2011 is by his admission stopped/cut off from claiming any Christmas bonus from the defendant. Instructively too, the Black Laws Dictionary, Sixth Edition at page 182 defines bonus thus:- A consideration or premium paid in addition to what is strictly due, a gratuity to which the recipient has no right to make a demand. Learned counsel for the defendant submitted on sub-claim vi, of the claimant that there is nothing before this Honourable Court to indicate that the defendant did transfer the claimant to its Kafanchan branch as contemplated in the general summary of policies admitted in Evidence as Exhibit F. However, the defendant’s instruction to the claimant to resume duty as its Kafanchan branch was part of the disciplinary measure adopted by the defendant against the claimant. To this extent, it is counsel further submission that the defendant reserves the right to adopt any disciplinary measure against any of its employees including the claimant. Hence, the Supreme Court in the case of Imonikhe V Unity Bank Plc (2011) 12 NWLR (Pt. 1262) P. 626 held that:- By the conditions of service of any organization properly so called an employer ought to be able to discipline erring employees. On sub-claim ii and iii, counsel contended that the claimant has not placed any material before this court to prove his claims thereto. The claimant however, in an attempt to prove the said sub-claims tendered in evidence Exhibits G to Gb and K to Ka respectively. Though the said Exhibits were admitted in evidence, the said Exhibits are legally inadmissible for their manifest non-compliance with the provisions of Section 84 of the Evidence Act 2011 as to strict requirement for admissibility of computer generated evidence. Accordingly, he urged the court to discountenance and expunge these Exhibits from this proceeding and not to take them into consideration howsoever. The counsel referred to paragraph 10 of the claimant’s amended statement of facts, Exhibits G to Gb that they were described as computer print out of the claimant’s pay slip but never in any paragraph of the said statement of facts did the claimant plead any fact contained in Exhibits K and Ka respectively which exhibits prima facie is a computer generated document. He commended the court to the amended statement of facts. Be that as it may, it is the contention that of all those Exhibits admitted as G, Ga, Gb, K and Ka are legally inadmissible assuming but without conceding that Exhibits K and Ka were pleaded. That in the light of the above, argument, that the provisions of Section 84 of the Evidence Act as a whole particularly subsection (4) thereto to contend that the admission of the said documents were in absolute contravention of the provision of the Evidence Act (supra). In this respect also, counsel referred the court to the recent Supreme Court decision in the case of Kubor V Dickson (2013) 4 NWLR (Pt. 1345) P. 534 where documents such as Exhibits G, Ga, Gb, K and Ka where tendered from the Bar and admitted in evidences G, Ga, K and Ka were tendered from the Bar and admitted in evidence and the Supreme Court after evaluating same held thus:- Admissibility of a computer-generated document or document downloaded from the internet is governed by the provision of Section 84 of the Evidence Act, 2011. By Section 84(1) of the Evidence Act, in any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any stated in it of which direct oral evidence would be admissible if it is shown that the following conditions are satisfied in relation to the statement and the document in question; that is:- a. That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period whether for profit or not or by any body whether corporate or not or by any individual; and b. That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived; and c. That throughout the material part of that period, the computer was operating properly or if not, that in any respect in which it was not operating properly or was out of operation during that period was not such as to affect the production of the document or the accuracy of its contents; and d. That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities. A party that seeks to tender in evidence a computer-generated documents needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the above conditions. In the instant case, there was no evidence on record to show that the appellants in tendering Exhibits D and L satisfied any of the above conditions ….. Since the appellants never fulfilled the preconditions laid down by law, Exhibits P and L were inadmissible as computer-generated evidence/documents. Counsel then submitted that the documents admitted in evidence as Exhibits G, Ga, Gb, K and Ka all the five of those documents were admitted in error contrary to the provisions of Section 84 of the Evidence Act 2011 as there is no certificate before this court establishing the genuineness of the source of those documents. Consequently, this court which is bound by the authority of the Supreme Court Kubor V Dickson (supra) is left with the only option of expunging the documents so wrongly admitted from its record suo motu consistent with the decision of the Supreme Court in Olayinka V The State (2007) 30 NSCQR (Pt. 1) P. 149,where the court held thus:- When evidence has been wrongly admitted, it is not a legal evidence and the court has a duty to expunge it from the record. Such evidence should be regarded as if it has not been tendered and admitted. The court cannot rely on it in reaching its ultimate decision. And any finding or decision based on such inadmissible evidence would be perverse and the appellate court faced with a situation has a duty to intervene. See also Abubakar V Joseph (2008) 34 NSCQR (Pt. II) P. 1195 @ 1239. Counsel concluded on issue I, submitted that with the above argument that the court should resolve issue one as above formulated in the negative and hold that the claimant totally failed to lead credible evidence in proof of his claim. The law is settled that pleadings without evidence in proof is fatal to a judicial proceeding. See Karimu V Lagos State Government (2012) 5 NWLR (Pt. 1294). In respect of issue two The learned counsel submitted that unchallenged evidence needs no further proof. In this respect counsel commended this court to the decision of the Supreme Court in the case of Shell Petroleum Development Company Nig. Ltd V Chief Tigbara Idamkue & 5 Ors (supra) where it was held that:- The law is well settled that a trial court is entitled to rely and act on the uncontroverted or uncontradicted evidence of a plaintiff or its witness/witnesses. In such a situation, there is nothing to put or weigh on the imaginary or proverbial scale. In such a case the onus of proof is naturally discharged on a minimum of proof. In a more recent decision of the Supreme Court it was also held that:- The law is trite that evidence that is relevant to the matter in controversy and which was neither discredited nor demolished remain credible evidence that ought to be relied upon by a trial Judge. See generally Vincent U. Egharevba V John A. Osagie (2009) 40 NSCQR P. 469 @ P. 497; Ogunyade V Oshunkeye (2007) 31 NSCQR P. 360 @ P. 378; and M. V. Gongola Hope V Smurfit Cases Ltd (2007) NSCQR P. 534 @ P. 595. In Olubodun V Lawal (2008) 35 NSCQR P. 570 @ PP. 600 – 601 the Supreme Court held thus:- Reply is the defence of the Plaintiff to the case put forward or even to the counter-claim of the defendant or to the new facts raised by the defendant in his defence to the Plaintiffs’ statement. Counsel said with the benefit of the above authorities, the failure of the claimant to file a reply in defence of the fresh facts and new issues raised in the defendant’s amended statement of defence particularly in paragraphs 6, 7, 8, 9, 10, 11 and 13 which new issues go to the root of the claimant’s claims amounts to an admission of the defendants averment in the said paragraphs or the statement of defence at large consistent with the decision in the case of Ezenwa V K.S.H.S.M.B. (2011) 9 NWLR (Pt. 1251) P. 89 where it was held thus:- Where an allegation of fact in a pleading save petition or summons is not denied specifically or by necessary implication in the pleading of the opposite party, same shall be regarded as being admitted, except as against an infant, a lunatic or a person of unsound mind not adjudge lunatic. Counsel said that in view of the above decision vis-à-vis the claimant’s failure to file a reply in reaction to the defendant’s statement of defence, he urged this court to resolve issue number two in the positive and hold that the claimant has admitted the issues raised in the defendant’s amended statement of defence. In conclusion he said that from the pleadings and the evidence before this court, the claimant has not by credible evidence proved his claim and this court being bound to decide this matter by the evidence before it should hold as such. The learned counsel for the claimant issues for determination adopted the two (2) issues already formulated by the defendant with slight modification of issue 1. i. Whether upon a thorough appraisal of the pleadings together with evidence led and exhibits tendered, the claimant has made out his case against the defendant to entitle him to the reliefs he has claimed in this action? ii. Whether the failure by the claimant to either challenge and/or controvert the issues raised by the defendants in their statement of defence and adopted in evidence does not amount to an admission by the claimant of the said issues? Issue 1 i.. Whether upon a thorough appraisal of the pleadings together with evidence led and exhibits tendered, the claimant has made out his case against the defendant to entitle him to the reliefs he has claimed in this action? In his argument on issue 1 counsel submitted that a thorough appraisal of the pleadings together with evidence led and Exhibits tendered, the claimant has proved his case and entitlement to the releifs sought. On Claim 1 counsel referred to paragraph 15 (a) (i) of the Amended statement of facts which is a claim for claimant salaries for July 2010 –March 2011. That the salaries of the claimant for the 9 months in question is N3,100,563.19. That this figure was never challenged by the defendant. The learned counsel argued that the claimant was placed on suspension according to Exhibit “D” to enable management investigated allegation of fraud. Within the said period, claimant was to keep his phone lines open and to remain in Abuja for easy accessibility. That after the investigation, claimant was absolved of any blameworthiness. Exhibit “E” with which claimant was recalled from suspension never put any blame on claimant. Thus, having been absolved, it is only equitable for him to be paid the said salaries. That defendant in paragraph 4.0.6 to 4.0.8 of their written address urged the court to refuse this head of claim on the ground that claimant did no work for the defendant throughout the period of the suspension. However, evidence on record is to the contrary. DW1, the witness of the defendant under cross examination said the claimant was available throughout their investigation which enables the committee that investigated the case to come to a conclusion. Thus, claimant participated actively in the investigation which also amounts to working for the defendant throughout the period of the suspension and as such he cannot be said not to do any work during the time of the investigation. Besides, the Letter of Suspension asked him not to leave Abuja for the said period. It is the counsel submission that the defendant cannot put claimant on suspension and still regulate how he runs his life. He was instructed not to travel from Abuja which he obeyed. Thus, having came out blameless at the end of the investigation of the allegation leading to his suspension, it is only proper for the court to order the defendant to pay him for the said period having rendered services to the defendant within the said period. He therefore urged the court to grant this head of claim. The learned counsel argued claims II & III. He referred to paragraph 15 (a) (ii) & (iii) of the Amended statement of facts are claims for the sum of N1,097,266.64 representing Hosing Allowance and N129,533.36 representing Dressing Allowance deductions respectively from April – November, 2011. This is a period of 8 months. That in paragraph 7, of his witness statement on Oath, claimant averred that these said sums were deducted from his salary when he was recalled in 2011 despite the fact that he did not obtain these allowances when he resumed from his suspension in March 2011. Exhibits G, GA & GB were tendered to corroborate this fact. The exhibits clearly indicate the deductions of these subheads from his salary even though he did not apply and obtain these allowances which were paid to staff in January 2011 due to the fact that he was on suspension. The amounts under these heads of claims were not denied by the defendant and so they ought to be awarded by this court and he so urged. In his arguing also which claim 15a (iv) & (v) is for the sum of N78,925.00 and N157,850.00 was claimed by the claimant as Christmas Bonus and Holiday (Leave Bonus Allowance) 2010 respectively. These heads of claim were never denied to be in existence at the Bank. Claimant was however not paid. He therefore urged the court to compel the defendant to honour these heads of claims which are outstanding. Defendant had responded to this head of claims in paragraph 8 of her statement of defence that claimant did not contribute anything throughout his period of suspension. He submitted that this is most uncharitable to the claimant. There is abundant evidence that claimant contributed to the committee efforts at resolving the investigation of the allegation of fraud in the defendant office. Alternatively, and more important, from Exhibit “D” I find out that claimant was suspended on 16th of July, 2010. He has therefore worked for half of the year and so if the court is reluctant to award the full sum under these heads of claims, the court should award 50% of it which claimant undoubtedly deserved having worked for half of the year. On claim 15a (vi) this is a claim for sum of N473,000.00 as transfer allowance. Counsel submitted that the claimant was working in Maitama 2 Branch of the defendant – Abuja (see paragraph 4 of claimant statement of facts) before he went on suspension. However, upon resumption from the indefinite suspension, he was asked to go and resume in Kafanchan Branch of the defendant in Kaduna state. See Exhibit “E”. Thus, being sent to resume in a branch outside the Maitama 2, branch in Abuja and transferred to another State, he was entitled to his transfer allowance as stated in Exhibit “F” which is the General Summary of policies of the defendant. The said sum of N473,000.00 claimed under this head was never controverted by the defendant. On this head of claim, the defendant joined issues and asserted in paragraph 9 of her statement of defence that the deployment of the claimant to Kafanchan Branch is akin to fresh assumption of duty on recruitment which attracts no transfer allowance. Counsel then submitted in reply to this that when claimant was asked to resume in Kafanchan, Kaduna State, the Letter of Recall i.e. Exhibit “E” did not say the deployment was like a fresh recruitment. Besides, the claimant also maintain his rank of Senior Assistant Manager as against the ‘Banking Officer’ he was employed vide Exhibit “A” dated November 10, 2005. Thus, this figure of N473,000.00 which was never challenged by the defendant should be awarded by the court as the transfer allowance of the claimant. On claim 15(a) (vii) in which the claimant claim the sum of N1,820,000.00 as his entitlement as part of his Profit Sharing (PS) 2010. On this, Exhibit “M” was tendered and admitted in evidence. The claimant counsel submitted that it is in evidence that profit sharing is a reward for the staff for their contribution of the profit realized by the defendant every year. The claimant was suspended from work from Friday July, 2010. Thus, he has contributed to the profit of the defendant for 6 months. Since defendant did not dispute the amount claimed by the claimant, if the court cannot award the entire sum to the claimant, then the court should award half of this sum to the claimant as his reward for the half year he worked before the suspension. Relief No. 15(b) deals with the sum of N500,000.00 representing the cost of litigation. Exhibit “N” was tendered to corroborate this. This item of claim was never challenged, controverted or contradicted by the defendant. The question now is whether this can be granted by this court? And we answer the question in the affirmative. In DIVINE IDEAS LTD V UMORU (2007) ALL FWLR (PT. 380) 1468 RT. 28, the Court of Appeal held that cost of litigation are special damages which must be proved and awarded by the court. And in U. T. B. V OZOEMENA (2007) ALL FWLR (PT. 358) 1014 RT. 10, the Supreme Court held that:- There is strict proof of special damages where there is a production of receipt as evidence of payment without oral evidence of the maker. In the case of International Offshore Construction Limited & 3 Ors V Shoreline Liftboats Nigeria Limited (2003) 16 NWLR (Pt. 845) 157 at 179 the Court of Appeal held that:- The Respondent led evidence to show that it paid its Solicitors N1,000,000.00 page 17 of the record of appeal. The Appellants did not challenge evidence led or show that the award was reasonable or that the respondent employed an unusual number of counsel or a very expensive counsel or that the award was more than necessary to indemnify the respondent of the expenses incurred in counsel’s cost, the appellants have not shown any of the above. Under our laws expenses incurred on services of counsel are reasonably compensated so held the Supreme Court in Rewane V Okotie-Eboh (1960) SCNLR 461, (1960) NSCC (Vol. 1) 135 at 139. Costs will therefore be awarded on the ordinary principles of genuine and reasonable out of pocket expenses and normal counsel cost usually awarded for a leader and one or two juniors. Therefore, the learned trial Judge was perfectly right in the award made in respect of expenses incurred by the respondent for services of solicitors employed in view of the unchallenged evidence before the Court. I, therefore, resolve No. 5 as formulated by the appellants in favour of the respondent. Under Nigeria laws expenses incurred on services of counsel are reasonably compensated, thus costs will be awarded on the ordinary principle of genuine and reasonable out of pocket expenses and normal counsel cost is usually awarded for a leader and one or two juniors. In the instant case, the trial court was perfectly right in the award it made in respect of expenses incurred by the respondent for services of Solicitors. In the above case, the Court of Appeal awarded the sum of N1,000,000.00 as damages for services of Solicitors. The case of REWANE V OKOTIE-EBOH (1960) SCNLR 461 (1960) NSCC (VOL. 1) referred to by the Court of Appeal in the International Offshore Construction Limited & 3 Ors V Shoreline Liftboats Nigeria Limited (2003) 16 NWLR (Pt. 845) 157 at 179 case, the Supreme Court held that:- When costs are awarded to a successful party, he is entitled to an indemnity for all the costs that were reasonably incurred by him in the ordinary course of the suit having regard to its nature but not to any extra ordinary or unusual expenses incurred in consequences of over caution as to the particular case or any special desire on his part to ensure success. (Underline mine for emphasis). This same position was endorsed by the Supreme Court in Buhari V Obasanjo (Supra) when the court held in RT. 56 of the report that:- Cost are in the discretion of the court – costs are not imposed as a punishment on the party who pays them nor are they awarded as bonus to the party who received them. The party entitled should only be indemnified for his out of pocket expenses and be compensated for the time and fair expenses for the litigstion. (Underlined mine for emphasis). The most recent authority on this issue is the decision of the Court of Appeal in July 2013 in the unreported case of Charles Naude & 2 Ors V Monday Simon Appeal No. CA/A/50/2011:- ….. having regard to the above recent cases, it is no more in doubt that damages for cost, which includes Solicitor’s fees and out of pocket expenses if reasonably incurred are usually paid by Courts if properly pleaded and proved. In short, the decision of this Honourable Court in the cited cases of IHEKWOABA V ACB LTD (Supra) and GUINNESS (NIG.) PLC V NWODE (Supra) where this Court held that the payment of Solicitor’s fees as damages is not supported in this Country does not represent the present state of the mind of the Courts in this Country. In more recent times, it’s common for Solicitors to include their fees for prosecution of cases and pass same to the other party as part of claims for damages, which have been awarded by the Courts once the claims are proved. On these authorities, counsel urged the court to award this head of claim. Now, before I delve into issue two, it is pertinent to reply some issues raised by the defendant on the poof of the claims of the claimant. In paragraphs 4.1.3 to 4.1.5 the defendant has urged the court not to rely on EXHIBITS G, GB and K to KA because, according to him, they are computer generated evidence and their failure to comply with the provisions of Section 84 of the Evidence Act, 2011 make them legally inadmissible. To this, counsel submitted that the documents are private documents and there was no objection t their admissibility. In IBRAHIM V OSUNDE (2003) ALL FWLR (PT. 142) 65 RT. 7, the Court of Appeal held that:- When a private document, not being a land instrument is admitted in evidence without objection by the adverse party, the issue of admissibility cannot be re-opened. However, more importantly counsel submitted that the National Industrial Court is a Court with special jurisdiction. It is not saddled by strict compliance to the provisions of the Evidence Act when it comes to admissibility. This is contained in Section 12 (2b) of the National Industrial Court Act, 2006 which provides that the court:- Shall be bound by the evidence act but may depart from it in the interest of justice . Thus, unlike the High Court, the National Industrial Court has great discretion in the admissibility of document outside the provision of the Evidence Act. And in the case of GABARI V ILORI (2003) ALL FWLR (PT. 177) 901, RT. 19. …. in matter of discretion, the court cannot be bound by previous decision to exercise its discretion in a particular manner because that would put an end to the exercise of discretion. Thus, the celebrated case of KUBOR V DICKSON (2013) 4 NWLR (PT. 1345) P. 534 cited by the defendant is not applicable as the case was not decided under the provision of the National Industrial Court Act. He therefore, urged the court not to allow this special provision Section 12(2b) to be devalued by the defendant. Issue No. 2 Whether the failure by the claimant to either challenge and/or controvert the issues raised by the defendants in their statement of defence and adopted in evidence does not amount to an admission by the claimant of the said issues? On argument on issue No. 2 the claimant counsel submitted that the defendant has submitted that the claimant did not file a reply to defendant’s Amended statement of defence and as such the facts pleaded by their Amended statement of defence should be deemed as uncontroverted. To this he submitted that the claimant filed a reply to the defendant statement of defence on 10th Janaury, 2013 together with a witness statement on Oath which he adopted in evidence. The defendant later amended the statement of defence but such an amendment only reverts back to the time when the old statement of defence was filed and so the reply of claimant filed on 10th January, 2013 still subsist and valid. Apart from that fact, claimed is not under any legal obligation to file a reply to defendant’s statement of defence especially where there is no Counter Claim by the defendant. In BALOGUN V E. O. C. B. (NIG.) LTD (2007) ALL FWLR (PT. 382), 1952 the Court of Appeal held when it become necessary to file a reply in Rt. 6 thus:- The necessity to file a reply by a Plaintiff only arises when:- a. The Plaintiff desires to admit certain facts alleged in the statement of defence or to meet them by asserting new additional facts; b. The Plaintiff desires to plead an objection on point of law; c. The Plaintiff desires to plead that the defence mistakes the cause of action; or d. The Plaintiff desires to contest a counter-claim pleaded in the statement of defence. A reply that is rooted on any other ground, as in the instant case, must miss the target, (precedent of pleading by Bullen & Leake and Jacobs 12th Edition, page 106. In Unity Bank Plc V Bouari (2008) ALL FWLR (PT. 416) 1825 RT. 9 – 10, the issue was pronounced upon by the Supreme Court when it held that:- The proper function of a reply is to raise in answer to the defence, any matter which must be specifically pleaded which makes the defence not maintainable or which otherwise might take the defence by surprise or which raise issue of fact not arising out of the defence. A reply is used by a Plaintiff to answer new issues raised in the statement of defence such as in cases of confession and avoidable. It is therefore not necessary to file a reply if its only purpose is to deny the allegations of facts made in the statement of defense because of the principle of joinder of issues. Where no counter-claim is filed, a reply is generally unnecessary if it is to deny allegations in the statement of defence. In SUNTAI V TUKUR (2003) ALL FWLR (PT. 157), 1128 RT. 10, the court held that:- There is a rule of practice that where there is no reply to a defence, there is an implied joinder of issues on that defence. It means that the allegations of facts in the statement of defence are deemed denied by the Plaintiff. Thus, the fact that there is no reply to an averment in a statement of defence does not imply admission thereof by the Plaintiff. In such a case there is the presumption that the Plaintiff has joined issues on the averment with the defendant. This does not apply to a conter-claim contained in a statement of defense. He therefore, urged the court to hold that claimant validly filed a reply but even if a reply is not filed, there is no admission of the facts contained in the defendant Amended statement of defence. In conclusion he therefore, urged the court that the claimant has proved his case and judgment should be given to him. The Defendant’s reply on point of law learned counsel submitted that the contention the “the figure representing the claimant’s salary was unchallenged when the issue in contention was whether the claimant having been on indefinite suspension without pay is entitled to his salary as stated in his letter of employment. Further still, in the case of Olatunji V Waheed (2012) 7 NWLR (Pt. 1298) P. 24 @ 50 Para D, the Court of Appeal held thus:- No matter how brilliant a counsel’s address is, it cannot take the place of legal evidence. Counsel went on to submit that the claimant whose averment of vindication from his suspected involvement in the fraud against the defendant was vehemently denied by the defendant and without further evidence to prove his exculpation or vindication cannot in his final address argue or submit that he was vindicated after investigation. Most significantly, he contended that the letter of indefinite suspension without pay relied upon by the claimant was not howsoever qualified that in the event of the defendant lifting the indefinite suspension, the caveat of “WITHOUT PAY” will be re-visited for the period of suspension. The claimant did not plead that neither did the claimant lead any evidence to that effect in his testimony before the court. The totality of the failure of pleading and failure of evidence to buttress the issue of payment to claimant upon lifting the suspension is fatal to after – thought claim of the claimant. See Karimu V Lagos State Government (2012) 5 NWLR (Pt. 1294) AT 649. Again, this court is bound by the evidence before it and that being a trite position of the law, counsel referred to Exhibit A and submitted that it is apparent and undoubtedly clear that the scope of the claimant’s duty while in the employ of the defendant does not cut across investigating and/or rendering assistance to the defendant’s commissioned investigators worse still when it is the claimant that was at the material time being investigated. In this regard, counsel urged the court to discountenance the claimant’s argument that leaving his phones on, not leaving Abuja and being available in the course of the defendant’s investigation of the claimant’s involvement in the fraud amounted to working for the defendant. This argument is not supported by any iota of evidence. Thus in the case of Nika Fishing Co. Ltd V Larvina Corporation (2008) 35 NSCQR P.1 @ PP 40 – 41 where Niki Tobi JSC (as he then was) in his stylish judgment held thus:- Parties are bound by the conditions and terms in a contract they freely entered into. The meaning to be placed on a contract is that which is the plain, clear and obvious result of the terms used. In view of the above, he submitted that the terms, conditions and covenants contained in Exhibit A (i.e. letter of offer of employment) is binding on the claimant consistent with the Supreme Court’s decision in the case of Kaydee Ventures Ltd V Minister of FCT (2010) 7 NWLR, Pt. 1192, P. 171 @ 200 Paras, B – C. On paragraph 5.0 to 6.0 of the final address of the claimant, he rely on the authorities of Longe V FBN Nig Plc (2010) 6 NWLR (Pt. 1189) P1, CBN V Igwilo (2007) 14 NWLR (Pt. 1054) P. 393 and Kubor V Dickson (2013) 4 NWLR (Pt. 1345) P. 534 all of which authorities were cited in the defendant’s final written address to submit that the claimant is not entitled to the claims in respect of which arguments were canvassed in the referenced paragraphs of the claimant’s final address. In his further argument the defendant counsel referred to paragraphs 11 and 12 of the defendant’s amended statement of defence, the defendant in very clear and unambiguous term did justify the reason for the deduction in the salary of the claimant after his recall which paragraphs were neither traversed by way of reply nor challenged in evidence by the claimant. In this respect he referred the court to the case of Nsir V C.S.C., Kano State (2010) 6 NWLR (Pt. 1190) P. 253 @ 267 Paras C – F; where the Supreme Court held thus:- Evidence that is relevant to the matter in controversy and has not been challenged or debunk remains good and credible evidence that may be used in the just determination of a dispute. And submitted that this court should rely on that unchallenged and un-contradicted evidence of the defendant to hold that the claimant is not entitled to that claim. See also the following Monkom V Odili (2010) 2 NWLR, (Pt. 1179), P. 419 and Ogbiri V N. A. O. C Ltd (2010) 14 NWLR (Pt. 1213) P. 208. The counsel argument on the claimant’s claim for Christmas bonus. That the claimant’s admission, that he did not work for the defendant during the year 2010 Christmas period and as such, he cannot be heard to lay claim for what he did not work for. See Section 123 of the Evidence Act 2011. Further the BLACK’S LAW DICTIONARY, sixth edition at Page 182, defined bonus thus:- A consideration or premium paid in addition to what is strictly due. A gratuity to which the recipient has no legal right to make a demand. Counsel also referred to the court decision in Nika Fishing Co. Ltd V Larvina Corporation (Supra) where it was held that the court is bound to give the terms of any contract its plain and ordinary meaning. On this ground he referred to Exhibit E which is a letter of recall from indefinite suspension dated 23/03/2011 vis-à-vis the evidence of DW1 relating to the then ongoing investigation of the claimant and submitted that the claimant was not transferred to the Kafanchan Branch of the defendant as contemplated by Exhibit F which is General Summary of policies. More so the claimant did not tender any letter of transfer before this court as the letter of recall cannot be said to be a letter of transfer. On the argument contained in paragraph 8.0 of the claimant’s final written address he contended that the claimant absolutely failed to lead evidence to show that he was entitled to anything called profit sharing or that profit shearing forms part of the terms of his employment. The claimant tendered in evidence exhibit A being a Letter of Offer of employment dated 10/11/2005 and Exhibit F being the general summary of policies both of which did not state that the claimant was entitled to anything called profit sharing. In the first place Exhibit G, GB and K to KA were tendered by the claimant to substantiate his claim in paragraph 7 of his amended statement of fact wherein he stated that bulk payment was always paid to him at the beginning of every year and which payment is subsequently deducted from his monthly salary. It is in evidence therefore that the claimant did not work for the defendant from July 2010 to March 2011 which means that the claimant remained indebted to the defendant for the bulk payment made to him by the defendant at the beginning of the year 2010. A such, the deduction stated in the statement of account if at all it will be relied upon, indeed corroborate the averment in paragraph 11 of the amended statement of defence. The claimant argued that this court is not saddled by the strict compliance to the provision of the Evidence Act when it comes to admissibility while making reference to Section 12(2) (b) of the National Industrial Court Act 2006. In this regard he submitted that the argument of the claimant is misleading as the said Section referred to only permits the court in the exercise of its discretion to depart from the Evidence Act in the interest of justice and not as regards to the admissibility. As a matter of sacred duty on counsel at all time, this court is in the first place, a court of law. In exercising such discretion, this court is bound to ensure that same is exercised judicially and judiciously putting into consideration the law and nothing else. Thus in the Supreme Court’s decision in Bassey Ebe V C.O.P (2008) 33 NSCQLR, (Pt. 1) P. 110 it was held thus:- This court has said that for a judicial discretion to be properly exercised, it must be founded upon the facts and circumstances presented to the court from which the court must draw a conclusion governed by law and nothing else. The exercise of that discretion must be honest and in the spirit of the statute otherwise any act so done will not find a solace in the statute and such a discretionary act must be set aside. More still the claimant argued that he filed a reply and in another breadth argued that he is not under any legal obligation to file a reply to the defendant’s statement of defence. This amount to approbation and reprobation on the same point which is not allowed. Finally, from the entire claimant’s final address, it could be gleaned that same was dotted by various alternative prayers radically different from the endorsement on the writ cum the amended statement of facts thereby throwing this Honourable Court in to an abyss of speculation amidst hypothesis. This has been frowned at by the courts. Thus is Olafisoye V F.R.N. (2004) 4 NWLR (Pt. 864) P. 580 @ 654 – 655. In the light of the above vis-à-vis the claimant’s final address wherein the court was prayed to grant at least half of the relief sought in the writ cum statement of facts, he urged this court to hold that the prayer for half of the reliefs sought as contained in the said final address do not have any bearing to the case presented before this court and as such should be discountenance. I have carefully considered the processes filed in this suit, the submissions of counsel for both parties and authorities cited. In my view the issue for determination by the court is whether the claimant is entitled to the reliefs sought. In this suit the claimant is claiming nine reliefs against the defendant. i. Salaries for July 2010 - March 2011(9months) = N3,100,563.19 ii. Housing Allowance deductions = N1,097,266.64 from April – November, 2011 (8 months) iii. Dressing Allowance deductions from April – November, 2011 (8 months) = N129,533.36 iv. Christmas Bonus for 2010 = N78,925.00 v. Holiday (Leave Bonus Allowance) = N157,850.00 vi. Transfer Allowance (Cumulative) = N473,000.00 vii. Profit Sharing (PS) 2010 = N1,820,000.00 (b) . The sum of N500,000.00 representing the cost of litigation. (c). The cost of filing this suit. In relief (1) the claimant is claiming for his salaries for July 2010 to March, 2011 for the sum of N3,100,563.19 (Three Million One Hundred Thousand Five Hundred and Sixty-three and Nineteen Kobo) Only. This amount covered the period of the claimant was on suspension. It is on record that the claimant was placed on suspension without pay by the defendant to allow for investigation of the involvement of the claimant in a large scale fraud discovered in the Bank Branch of the claimant. It is trite that an employer has the right to discipline any earning staff including the claimant for any act of misconduct. A suspension of an employee is not an unusual procedure taken in order to facilitate such an investigation as the interest of the business of the defendant becomes paramount. Although, in most cases suspension results in a disciplinary action, it is not invariably so. There are instances when the authority decides not to continue with the matter. The claimant was recalled from the indefinite suspension by the defendant on the 23rd March, 2011 after finding out that the claimant was not involved in the fraud. According to the defendant they magnanimously decided to recall the claimant as a mark of human resources policy with human face and corporate tolerance of innocent negligence. On his return to office at his recall the claimant demanded for the payment of his outstanding emoluments which includes his salaries and allowances for the months he was on suspension. The defendant contended that he was not entitled to any arrears of salaries that he cannot be heard demanding for his salaries and allowances after his recall from suspension. What is suspension of an employee by an employer? When is it resorted to in the relationship between an employer and an employee? The word suspension only means a temporary deprivation, cessation or stoppage of the privileges and rights of a person. The word carries a temporary disciplinary procedure which keeps away the person discipline from his regular occupation either for a fixed or terminal period or indefinitely. Suspension is very different from dismissal. The officer is placed on hold that is in anticipation of either being recalled or laid off permanently. The effect of suspension given to an employee is that all his privileges and powers attached to the employment cease until he or she is cleared of the allegation. Applying this to the case at hand, the claimant was placed on indefinite suspension by the defendant to enable them investigate the large scale fraud that rocked the Bank by a letter dated 16th July, 2010. The letter of suspension Exhibit D in paragraph 3 reads:- During this period you are to keep your phone lines open and remain in Abuja for easy accessibility. In other words, the employer in suspending the claimant imposed terms as the claimant couldn’t do anything. After the investigation the defendant found that the claimant was not guilty of participating in the fraud as a result of which he was recalled back into the Bank. Upon his resumption, the claimant demanded for the sum of N3,100,563.19 (Three Million One Hundred Thousand Five Hundred and Sixty-three Naira and Nineteen Kobo) Only his salary for the period of 9 months he was on suspension. The question now is, can the defendant deny the claimant his salaries and allowances for the period of 9 months he was on suspension without pay after his recall? As I said earlier suspension is neither a termination of the contract of employment nor a dismissal of the employee. The claimant was placed on hold in anticipation of either being recalled or laid of permanently. In the case at hand the claimant was recalled by a letter dated March 23, 2011. In paragraph 6 of the defendant statement of defence the defendant said:- They magnanimously decided to recall the claimant as a made of human resources face and corporate tolerance of innocent negligence. It is my view therefore, that the defendant cannot having accepted to tolerate him turn round to deny the claimant his salaries for the period he was on suspension. The letter of recall from indefinite suspension did not state that the claimant would lose his salaries and allowances for 9 months. It is also on record that the defendant did not challenge the figure or the amount being claimed by the claimant for the period the claimant was on suspension he was not at liberty to utilize his time as he desires until the close of work. Even though he was on suspension he remained the staff of Zenith Bank Plc. On this issue, I resolved this in favour of the claimant and the defendant is liable to pay the sum of Three Million One hundred Thousand Five Hundred and Sixty-three Naira Nineteen Kobo Only (N3,100,563.19) to the claimant as his salaries and allowances for the period he was on suspension. The claimant is also claiming or demanding for the sum of N1,097,206.64 (Three Million One and Ninety-seven Thousand Two Hundred and Six Naira Sixty-four Kobo) Only as housing allowance and N129,533.36 (One Hundred and Twenty-nine Thousand Five Hundred and Thirty-three Naira Thirty-six Kobo) Only representing dressing allowance deducted from his salaries from April – November, 2011 that is for a period of eight months. The claimant contended that he never obtained there allowances which were paid to staff in January 2011. From the record and available facts the defendant has failed to debunk the claimant claim. They did not proffer any evidence to show that the claimant collected the allowances. It is a settled principle that, which is not denied is deemed to have been admitted. See the case of Oko V Aiyedun (1986) NWLR (Pt. 23) 548. By this principle the defendant is liable to refund the sum of N1,097,206.64 and N129,533.36K to the claimant by producing evidence of such payment made to the claimant. On this issue the defendant did not deny deducting the sum of N1,097,206.64 as housing allowance from the claimant salary. They only argued that he was paid full housing and dressing allowances for the previous year and part of the period when the claimant was on suspension without pay. That the deduction in subsequent year were retroactive repayment of the bulk payment of housing and dressing allowances for the remained of unserviced period. There is no evidence before the court to show that the claimant was paid this sum. It is clear that there is no justifiable reason for the defendant to have deducted the sum. The sum of N1,097,206.64 and N129,533.36 must also be refunded to the claimant. The claimant claim (VI) is for the sum of N473,000.00 (Four Hundred and Seventy-three Thousand Naira) Only as transfer allowances. The defendant denied that they transferred the claimant to Kafanchan Branch of the defendant and more so that the claimant did not tender and letter of transfer as the letter of recall cannot be said to be a letter of transfer. From the available fact, the place of work of the claimant before his transfer to Kafanchan was Maitama Branch of the defendant. To show that he was indeed transferred and worked at Kafanchan to be entitled to the sum being claimed, the claimant tendered Exhibits G & Ga which were his pay slips issued by the defendant for April, May, and June, 2011 where the location of the branch was referred to as Kafanchan. A look at the internal memo from the Human Resources address to the claimant Daniel Inyang dated 23rd March, 2011 titled:- RECALL FROM INDEFINITE SUSPENSION read thus:- The above subject refers. Please be advised that Management has approved your recall from indefinite suspension effective March 28th, 2011. Consequently, you are expected to resume duty in Marketing, Kafanchan Branch. It is obvious that the claimant could not have decided on his own will to have gone to Kafanchan without authorization from the defendant. The above letter is very clear and unambiguous the claimant was directed to resume work at Kafanchan and he obeyed, he is therefore entitled to the claim of N473,000.00 as transfer allowance the figure the defendant did not challenge. He was sent to Kafanchan branch and he did work there. His transfer to Kafanchan was at the instance of the defendant, the letter of recall is not a fresh letter of appointment. The claimant is demanding for Xmas bonus for 2010 and the profit sharing for 2010. The argument raised by the defendant for denying the claimant these allowances is that the claimant was on suspension and that he did not work for the period. It is evident that if the defendant had found the claimant guilty of fraud he would not have been recalled from the indefinite suspension. The claimant worked for more than six months before he was placed on suspension. It is my view that since the defendant had decided to tolerate his innocent negligence they cannot turn around to deny the claimant his entitlement. He worked up to July 16th, 2010 before he was suspended. He is entitled to be paid profit sharing at least for the period he worked for the defendant. While he should be paid fully his Xmas bonus. The claimant remained a staff of the defendant whilst on suspension. On the issue of leave allowance wherein the claimant is claiming the sum of N157,850.00. The defendant merely denied the claim without more. The claimant is entitled to his leave allowance for the year 2010. On the demand for cost of litigation of the case, the claimant is asking the court to direct the defendant to pay him the sum of N500,000.00 (Five Hundred Thousand Naira) Only. The court will make an award of N250,000.00 (Two Hundred and Fifty Thousand Naira) Only to the claimant. Litigation is very expensive and this matter should not have come to court if the defendant had done the needful by paying the claimant his entitlements. The claimant has proved his case on this issue and he tendered the payment receipt issued to him by his counsel as legal fee for the services rendered to him. The claimant should be indemnified by the defendant for the cost he incurred in the prosecution of this case. On the cost of filing the suit, the claimant did not produce evidence of what he paid in filing suit in the court. The court will not act on speculation. The court therefore, makes no award on this claim. For the reasons given above, all the claims of the claimant are granted with the exception of claim for cost of the suit. It is also the order of this court that the sums must be paid to the claimant within 30 days of this Judgment. Judgment is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE