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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: 12TH MARCH, 2015 Suit No. NICN/ABJ/117/2014 BETWEEN MR. PAUL A. IGUNGU CLAIMANT AND NATIONAL EXAMINATIONS COUNCIL DEFENDANT REPRESENTATION Eric Nwabuzor Esq for the Claimant. O. O. Ifijeh (Miss) with Rotimi Obafemi Esq for the Defendant. JUDGMENT The claimant took out an originating summons dated and filed 13th May, 2014, he seeks for the following reliefs against the defendant:- 1. A Declaration that between 7th day of May, 2012 and the 4th day of March, 2014 (22 months) when the claimant was placed on suspension by the defendant, the claimant was still a staff of the defendant. 2. A Declaration that by reason of unconditional recall of the claimant from suspension vide the defendant’s letter of March, 2014, the claimant is entitled to the arrears of his salary which was withheld from him during the period of suspension. 3. A Declaration that the claimant is entitled to his salary and allowance for a period of Twenty-two (22) months commencing from May 2012 to February 2014 at the rate of N138,000 per month which was the last monthly salary of the claimant before he was suspended. 4. An Order mandating the defendant to pay the sum of N3,036,000.00 being the sum total of the claimant’s salary for the 22 months he was placed on suspension to the claimant forthwith. 5. An Order awarding punitive, exemplary and aggravated damages against the defendant for refusing or neglecting to pay the claimant his arrears of salary while on suspension after he has been recalled unconditionally. The claimant thereafter raised the following issues for determination to wit:- (a) Whether the claimant, while on suspension for the period of 22 months, was still a staff of the defendant. (b) Is the claimant’s recall from suspension by the defendant conditional? If No, is the claimant not entitled to his salary for the 22 months he was placed on suspension by the defendant. Accompanying the originating summons are the claimant 16 paragraphs affidavit sworn to by the claimant in this suit, written address and documents to be relied on. The defendant entered a conditional appearance dated 26th May, 2014 and filed on 3rd June, 2014. Defendant/Applicant by a motion dated 20th June, 2014 and filed on the 27th June, 2014 prayed the court to strike out the instant case for being incompetent. The court delivered its ruling on the Motion on the 6th of December, 2104. Thereafter, the case was adjourned to 16th December, 2014 for hearing of the originating summons. On the 16th of December, 2014, the learned counsel for the claimant adopted originating summons filed on 13th May, 2014 and relied on all the paragraphs and Exhibits 1, 2 and 3 attached to the affidavit. The claimant also relied on the further and better affidavit filed on the 3rd July, 2014. In the address, the claimant counsel formulated two issues for the determination of the court to wit:- 1. Whether the claimant, while on suspension for the period of 22 months, was still a staff of the defendant. 2. Is the claimant’s recall from suspension by the defendant conditional? If No, is the claimant not entitled to his salary for the 22 months he was placed on suspension by the defendant? In arguing issue 1, whether the claimant, while on suspension for the period of 22 months, was still a staff of the defendant. The learned counsel for the claimant answered the above question in the affirmative. He commenced stating that the claimant employment is statutory and is regulated by law to wit; National Examination Council (NECO) Establishment Act CAP N37 and the Public Service Rule of the Federal Republic of Nigeria. The counsel submitted that the claimant was employed by the defendant pursuant to Section 10 of the NECO Act CAP N37 and in the absence of any regulation made by the Council regarding Staff Conditions of Service, the applicable condition of service to the claimant’s employment with the defendant is the condition of service of officers in the Civil Service of the Federation otherwise known and called the Public Service Rule. Section 11 (2) of the NECO Act (Supra). The counsel then submitted that Clause 030406 of the Public Service Rules applicable to the claimant’s employment with the defendant, suspension from work with or without pay does not terminate the employment of the claimant while on suspension. This Clause has been subjected to Judicial Interpretation by no less a court of law than the Supreme Court of Nigeria in the case of BERNARD LONGE V FIRST BANK OF NIGERIA PLC & ORS (2010) 3 SCNJ 295 AT 341 where the court held:- Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee but while there is neither work done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate of the contractual obligations of parties to each other, per Adekeye JSC. The counsel submitted that to drive home their submission, he commended the court the contents of Exhibits 1, 2 and 4 attached to the affidavit in support of the Originating Summons. Paragraphs 2 of Exhibit 1 reads:- As the Accountant in Nasarawa State Office, I am directed to issue you a letter of suspension without pay until final decision is taken on this case. Continuing the learned counsel to the claimant submitted from the above quoted portion of Exhibit 1 that the suspension of the claimant from work without pay did not terminate his employment with the defendant particularly because no decision had been made on the fate of the claimant’s employment with the defendant at the time of placing him on suspension. Furthermore, paragraph 2 of Exhibit 2 reads:- I am directed to notify you that the Registrar/Chief Executive has directed that you be recalled from suspension. Counsel submitted that the claimant’s recall from suspension is unconditional and he urged the court to so hold. The counsel went further to argue that with regard to the 2nd leg of issue No. 2 he submitted that the answers to the poser is an emphatic yes to the effect that the claimant entitled to his arrears of salaries for the period he was on suspension. It is settled law that suspension does not diminish the rights of an employee (particular an employment with statutory flavour such as that of the claimant, under the law as such an employee is still entitled to all the rights and privileges applicable to his employment. See the case of BERNARD LONGE V FIRST BANK OF NIGERIA PLC (Supra) ratio 11 at page 320. He urged the court to uphold and resolve the two issues formulated in favour of the claimant and grant all the relief’s claimed. The defendant filed a 14 paragraphs counter-affidavit deposed to by Helima Mohammed. That attached to the counter-affidavit are 3 Exhibits, Exhibits NECO A, B and C. The Exhibit NECO A, is the complaint written to Police for investigation, Exhibit NECO B, is for the investigation report and Exhibit NECO C, is for the report from the Police. The defendant relied on the paragraphs and the Exhibits attached to the counter-affidavit, a written address is also filed in support. The defendant raised a single issue for determination of the court:- Whether having regard to the circumstances of this case i.e. the claimant having admitted that he embezzled defendant’s N9,000,000.00 the withholding of his salary is proper? The learned counsel for the defendant argued that claimant’s approach to his claim is simplistic. That facts are clear. He admitted converting defendant’s N9,000,000.00 to solve his personal problem and even gave another N884,000 as loan to his fellow members of staff. They have repaid the loans. The claimant went further to argue that meanwhile, having admitted, the defendant simply suspended him from office. The defendant did not decide the fate of the claimant since only a Court of Law can try criminal offences. The defendant, therefore, handed over the matter to the Police but withheld his salary in view of his admission to the Administrative Panel. This withholding of his salary is to enable the defendant recover its N9,000,000 but the complaint to the Police is to ensure the criminal prosecution and punishment for criminal breach of trust and criminal conversion or theft. The counsel then submitted that if the claimant now seeks to renege on his admission and confession to the police, then he urged the court to transfer the matter to the general cause list. The claimant counsel filed a reply on points of law:- Submitting that Exhibit NECO A contradicts, in a material particular the contents of Exhibit NECO C attached to the defendants counter-affidavit. To start with, Exhibit NECO A, is a written complaint by the defendant to the Commissioner of Police Nasarawa State. Police Command requesting for investigation of the claimant. The said letter was dated the 14th day of May, 2012 i.e. seven days after the claimant has been suspended (Exhibit 1), the purpose of the suspension was “until a final decision is taken on this case”. There was no indication on the letter that the claimant was indicted by an Administrative Panel nor was it stated that the claimant was suspended to make way for any form of investigation. Continuing, counsel for the claimant argued further again, Exhibit NECO C is the purported investigation report written by the Niger State Police Command at the request of the defendant (Exhibit NECO 2). The request for investigation (Exhibit NECO 1) was forwarded to Nasarawa State Police Command, which by every indication, operates independent of Niger State. Could it then be said that Nasarawa Command investigated and Niger State Command issued the report? Counsel submitted that the defendant must answer this question. Counsel submitted that a perusal of Exhibit NECO C reveals that the complaint investigated by the Niger State Command is at the instance of one Babatunde S. Aina who is equally the maker of Exhibit NECO 1. There is no where in Exhibit NECO 3 that it was indicated that a separate report was brought to the Niger State Command. Exhibit NECO C therefore, he submitted is a fabrication by the Niger State Command on the investigation of the defendant to justly the refusal to pay the claimant his arrears of salary while on suspension. Therefore, Exhibit NECO C, is a material contradiction to the contents of Exhibit NECO 1 and it trite that it not safe for the court to act on same. See the case of NWACHUKWU V ONWUNWANNE (2011) 5 SCNJ 197 AT 213 – 218 RATIOS 8 – 14. Counsel also submitted further that the claimant had been unconditionally recalled from suspension before Exhibit NECO C was made. While the claimant’s recall from suspension is dated the 18th day of March, 2014, the defendant’s Exhibit NECO C is dated the 4th day of June, 2014 i.e. more than three (3) months after the claimant has been unconditionally recalled. How then can Exhibit NECO C provide justification for an action that had long been taken? Counsel submitted that since Exhibit 2 predates Exhibit NECO C, it only goes to show that the defendant final decision on the matter is unconditional recall of the claimant and by reason thereof restored the suspended rights and privileges including arrears of salary of the claimant. Counsel contended further that in addition, that the contents of Exhibit NECO C heavily relied on the by the defendant cannot be acted upon by this Honourable Court because it is a document made when proceedings were pending or anticipated contrary to Section 83 (3) of the Evidence Act, 2011. To drive home on point, he referred the court to the Originating Summons filed by the claimant, that a cursory look at the front page of the Originating process reveals that this suit was filed on the 13th day of May, 2014. Request for investigation report by the defendant was written on the 20th day of May, 2014 (Exhibit NECO B) apparently after having been served the claimant’s Originating processes. Worse still, Exhibit NECO C was made on the 4th day of June, 2014 i.e. Twenty-two (22) days from the date the claimant filed suit. Counsel submitted that there is nothing left to prove that Exhibit NECO C is a document made when proceedings were pending and cannot be received in evidence by this court. See the Supreme Court case N.S.I.T.F.M.B. V KLIFCO (NIG) LTD (2010) ALL FWLR (PT. 534) 73 AND GWAR V ADOLE (2003) 3 NWLR (PT. 808) 516. He prayed the court to uphold and discountenance Exhibits NECO B & C. Finally, the learned counsel submitted that it is trite and fully settled in law that when an employee is placed on suspension by an employer to enable a final decision to be taken if, he is subsequently recalled back to work, the employee is entitled to his arrears of salaries and wages while on suspension. Exhibit 2 in support of the Originating Summons is no more than an evidence that the claimant was exonerated of any wrong doing. See ADEKUNLE V WESTERN REGION FINANCE CORP (1963) WNLR 5 AND UNDERWATER ENGINEERING CO. LTD V DUBEFOM (1995) 6 NWLR (PT. 400) 156 where the Supreme Court held:- Suspension is merely by way of good administration. Moreover the employer is still bound to pay the workers wage because of the recall he had chosen to keep the contract alive. In all, counsel urged the court to discountenance the defendant’s counter-affidavit, the Exhibits and the written submission. On the contrary he urged the court to uphold our submissions and grant all the relief claimed by the claimant. I have carefully gone through the processes filed in this suit, the submissions of counsel and authorities cited, in my view the issue for the determination is:- Whether the claimant is entitled to his 22 months salary which covered the period he was on suspension. In this suit the claimant is claiming his salaries for Twenty-two (22) months being his salaries from May 2012 to February 2014 at the rate of N138,000.00 per month. The amount covered the period the claimant was on suspension. It is not in dispute that the claimant was placed on suspension from duty without pay until a final decision is taken on his case by the defendant from 7th May, 2012. Suspension means a temporary deprivation, cessation or stoppage of or from the privilege and right of a person. The word conveys a temporary or transient disciplinary procedure which keeps away the person disciplined from his regular occupation for a fixed or terminal period or indefinitely. This disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing the discipline. Given the facts before the court and the contents of the letter of suspension, the claimant was placed on suspension after the management meeting of 3rd May, 2012 had considered the Administrative Panel report that investigated the shortfall of revenue discovered in Nasarawa State. It is trite that an employer has the right to discipline any erring staff including the claimant for any act of misconduct. The suspension of an employee is not an usual procedure taken in order to facilitate investigation of an alleged impropriety. When an employee is suspended all his rights and privileges and powers attached to the employment cease. The claimant was recalled from suspension by a letter dated 18th March, 2014 with effect from 4th March, 2014. On his return to office from his recall the claimant demanded for the payment of his Twenty-two months salaries for the period he was on suspension. The defendant admitted that the claimant was not paid because this will enable the defendant recover its N9,000,000.00 while the defendant had handed over the matter to the Police for criminal prosecution of the claimant. The question for the court to determine here is:- Whether the defendant can deny the claimant his salaries and allowances for the period of 22 months when he was on suspension without pay after his recall. In order words what is the status of the claimant during the period of suspension. It is settled law that suspended employee remains the staff of the organization until the contract is determined. In other words the contract subsists until determined. See Adekunle V Western Region Finance Corporation (1963) NWLR. From the foregoing, the claimant remains the employee of the National Examinations Council (the defendant) during the period of suspension and until his appointment is determined. The claimant was recalled to the services of the defendant at the instance of the Registrar/Chief Executive. He was directed to report to the Director Finance and Accounts unconditionally. The letter of recall from suspension did not state that the claimant on recall would not been paid his salaries for 22 months while on suspension. Having recalled the claimant from suspension the defendant cannot withhold or refuse to pay the claimant his unpaid salaries for 22 months. From the evidence before the court the defendant is yet to get the claimant prosecuted following the investigation carried out by the Administrative Panel that investigated the shortfall of revenue discovered in Nasarawa State, since 2012 May or by the Police. I can’t but agree with the learned counsel for the claimant that there are contradictions in the submissions of the defendant. The claimant remained a staff of the defendant while on suspension and on his recall he is entitled to his salaries and allowances. The issue of fraud levied against the claimant must be established by his prosecution in the law court. Thereafter what ever steps the defendant intends to take to recover the money can then follow. The defendant must not take law into its hand. The Administrative Panel or the Disciplinary Panel is not a law court. The claimant’s 5th reliefs is for aggravated damages against the defendant for refusing or neglecting to pay his arrears of salary while on suspension after he has been recalled unconditionally. The court declines to grant the relief this is because the defendant has the right to discipline any erring staff in its employment. It is within the power of the defendant to suspend any erring staff in his organization. For the reasons given above the claimant claims succeed to the extent that his arrears of salary for his 22 months should be paid to him forthwith. Judgment is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE.