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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: April 28, 2015 SUIT NO. NICN/OW/17/2013 Between Mr. Onwukwe Chukwuemeka ….. …. Claimant And 1. Federal Polytechnic Nekede 2. The Council, Federal Polytechnic Nekede …. DEFENANTS 3. The Rector, Federal Polytechnic Nekede Representation I. S. Iwuoha for the Claimant N. C. Ohakwe for the Defendants JUDGMENT The claimant commenced this suit at the Federal High Court, sitting in Owerri by a Writ of Summons filed on 16/3/2012. The suit was however transferred to this Court being the court with the requisite jurisdiction to entertain the suit. On 13/11/2013 this Court directed the parties to re-file their processes to bring them in accordance with the Rules of this Court. Pursuant to the said order of Court, the Claimant filed his processes on the 7th day of January 2014 wherein he claims against the Defendants as follows: 1. Declaration that the suspension of the claimant by the defendants from duty from 1st December 2010 to 18th December 2011 is null and void, and of no effect. 2. Declaration that the placement of the claimant by the defendants on half salary from 1st December 2010 to 18th Dec. 2011 is null and void and of no effect. 3. Declaration that the claimant is entitled to the sum of N956,527.19 (Nine Hundred and Fifty Six Thousand, Five Hundred and Twenty Seven Naira, Nineteen Kobo only) being and representing unlawful withdrawals/deductions from his salaries from 1st December 2010 to 18th December 2011 by the Defendants. 4. N956, 527.19 (Nine Hundred and Fifty Six Thousand, Five Hundred and Twenty Seven Naira, Nineteen Kobo only) being special damages for the unlawful deductions/salary adjustment from the claimant’s salary from 1st December 2010 to 18th December 2011 as follows: Particulars of Special Damages (Deductions) 1. December 2010 = N64,653.50 2. February 2011 = N96,980.25 3. March 2011 = N96,980.25 4. April 2011 = N64,653.50 5. May 2011 = N64,653.50 6. June 2011 = N64,653.50 7. July 2011 = N68,068.04 8. August 2011 = N68,068.01 9. September 2011 = N68,068.04 10. October 2011 = N68,068.04 11. November 2011 = N68,068.04 12. December 2011 = N98,959.02 TOTAL = N956,527.19 5. An order directing the defendants to lift the caveat placed on the withdrawal by the claimant of his Pension Contributions for thirty-three (33) years and seven (7) months, with Pension Alliance Ltd. 6. An order compelling the defendants to effect the promotion of the Plaintiff to grade level CONTISS 9 and to pay the salary scale attendant thereto from 1st January 2011, to December 2011. 7. N9,043,472.81 (Nine Million, Forty Three Thousand, Four Hundred and Seventy Two Naira, Eighty One Kobo) only being general damages for unlawful interference with the plaintiff’s salary, benefits and promotion from December 2010 to December 2011. 8. Interest at the rate of 10% on the judgment sum until fully liquidated. The Complaint was accompanied with an Affidavit in verification of the endorsement on the complaint, Statement of Facts establishing the cause of action, the Claimant’s written deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The defendants also complied with the order of court by filing their joint Statement of Defence on the 11th day of February 2014. The case proceeded to hearing on the 25th day of February 2014. The parties fielded a witness each. The Claimant testified on behalf of himself as CW1 while Amanze Honourine Nneka, the legal officer of the 1st Defendant testified on behalf of the defendants as DW1. Hearing was concluded by the 3rd day of October 2014, and at the close of the case for each of the parties, the court ordered the parties to file their final written addresses in accordance with the rules of this court, starting with the defendants. The defendants filed their final address on the 28th day of November 2014 vide a motion for extension of time. The said final address was deemed filed and served on the 2nd day of December 2014. The Claimant’s written address was filed on the on the 26th February 2015 out of time, and was deemed as properly filed on the 3rd day of March 2015. The defendants filed a Reply on Points of Law on the 2nd day of March 2015. Parties adopted their respective written addresses on the 3rd day of March 2015. It is the case of the claimant that he was employed by the defendants on 17th May 1978. The claimant rose to the position of Senior Works Superintendent on grade level CONTISS 8 Step 6 in the works and Service Department of the 1st defendant. However sometime in September 2010 there was an incident involving a missing vehicle with Registration No. FG-39-A51 belonging to the 1st defendant. Following the alleged incident, the defendants purported to have investigated the matter and placed the claimant on suspension with half salary payment pending the conclusion of police investigation into the incident or conclusion of the case against the claimant. The claimant continued on suspension with half salary payment from 1st December 2010 until 18th December 2011, when he retired from the services of the Defendants having attained the statutory retirement age. The claimant upon invitation appeared before the Nigeria Police in charge of the investigation and made his statement. The defendants on their own part did nothing to ensure speedy conclusion of the Police investigation and/or trial of the claimant if any offence was disclosed against him, until he retired on 18th December 2011. The claimant having waited for the conclusion of the Police investigation and/or institution of any case against him brought this action as per his claims above. The claimant tendered Exhibits CC1, CC2, CC3, CC4, CC5, CC6, CC7, CC8, CC9 and CC10 A-M. The defendants in their statement of defence dated and filed 11/22014 denied liability for the claimant’s claims. The defence called one witness who testified on 3/10/2014 and tendered Exhibits as well. In the written address of the defendants, counsel for the defendants gave a brief summary of the case as follows: The claimant a senior works superintendent in charge of transport was a prime suspect in the case of a missing/stolen Polytechnic Vehicle with Registration No. FG-39-A51 belonging to the 1st defendant. As a result of the loss of the said vehicle in which the claimant was the prime suspect, a panel of investigation was set up by the 1st defendant to investigate the circumstances of the lost vehicle. The claimant and other suspected co-workers were invited by the panel of investigation who conducted a discreet investigation on the circumstance of the loss of the vehicle with Registration No. FG-39-A51 belonging to the 1st defendant. At the conclusion of the Panel’s Investigation, the panel was unable to absolve the claimant and some of his co-workers from complicity and responsibility for the loss of the vehicle in its report on the investigation. The panel recommended that since the car theft is a criminal offence, the matter should be reported to the Police. The matter was reported to the police for further investigation. The claimant was suspended and placed on half salary by the 1st defendant based on the report of the panel of investigation pending the outcome of the investigation by the police. The claimant has filed this suit challenging his suspension as well his placement on half salary. Counsel then proceeded to formulate the following four (4) issues for the determination of the court: 1. Whether the claimant was aware and informed of the outcome of the report of the committee set up by the defendants to investigate the case of stolen car Rio and also the police investigation report on the stolen vehicle FG-39-A51 which indicted the claimant? 2. Whether Exhibits OC6, OC7 and OC8 are admissible in law? 3. Whether the claimant’s suspension by the defendants is within the Rules and Regulations governing the 1st defendant? 4. Whether the claimant is entitled to the reliefs sought in this case from the evidence led and documentary evidence before the court. In arguing issue one, counsel pointed out that the claimant by his pleadings stated that he was not aware of the findings of the Committee set up to investigate the stolen vehicle No. FG-39-A51 belonging to the 1st respondent and also that he (the claimant) was not communicated regarding the outcome of the police investigation of the stolen vehicle FG-39-A51. The defendants in their statement of defence in paragraphs 11 and 15 traversed these allegations and stated that the claimant was communicated with both the outcome of the committee set up by the defendants to investigate the stolen car and the police investigation report on the stolen FG 79A51. Counsel pointed out further that during cross-examination of CW1, the defence counsel put the following questions to CW1: Question: You and other co-workers involved in the missing vehicle incident were suspended by the 3rd defendant (Rector) after the investigation report of panel/committee did not exonerate you and other co-workers. Answer: I was the only staff suspended. Emma Onyenankeye is still working. Question: You were placed on half-salary after the report of Polytechnic Investigation panel/committee did not exonerate you? Answer: I was placed on half-salary from 1st December 2010 till now. In the same vein according to counsel, DW1 under cross-examination was asked the following question: Question: The management of 1st defendant set up a committee/panel to investigate the allegation against the claimant in respect of the missing vehicle? Answer: Yes. Question: It was based on the findings of the committee that the claimant was placed on suspension and payment of half salary. Answer: Yes. Question: You wrote the claimant by Exhibit OC1 to inform him of his suspension? Answer: Yes. Question: Was the report of the findings of the panel given to the claimant? Answer: He was not given a copy but Exhibit OC1 indicated the findings of the panel. Counsel submitted that from the evidence adduced by both CW1 and DW1 under cross-examination with respect to whether the claimant was aware of the outcome of the investigation committee/panel set up by the defendants, counsel said it is clear and admitted by both CW1 and DW1 that Exhibit OC1 was the mode of communication to the claimant. Exhibit OC1 is the letter of suspension of the claimant. From the wordings of Exhibit OC1, it can be deduced that the claimant was suspended based on the findings and recommendations of the committee set up to investigate the case of the stolen vehicle No. FG-39-A51. The crucial question here is: Can the claimant based on Exhibit OC1, claim not to be aware of the outcome of committee’s report set up to investigate the stolen vehicle? Counsel answered the above question in the negative, and submitted that Exhibit OC1 shows contrary to the assertion of the claimant that he was not communicated with the outcome of the report of the investigation committee. On the issue of police investigation of the stolen vehicle FG-39-A51, Counsel submitted that it is not in contention that the Police investigated the incident of the stolen vehicle No. FG-39-A51 belonging to the 1st defendant which the defendants reported to the police. Exhibits OC2, OC3 and OC4 were written by the defendants to the Nigeria Police Headquarters, Imo State Command on the need to expedite action in their investigation and submit to the defendants, the police investigation report on the matter. More importantly Exhibit OC4 written by the Registrar of the 1st defendant emphasized on the need for the Police to expedite action in concluding their investigation to enable the 1st defendant conclude administrative procedures on the claimant who was to retire from service some time in December, 2011. Counsel submitted further that DW1 under cross-examination admitted that the claimant was communicated orally by the Registrar of the 1st defendant. To counsel, from the totality of the evidence and pleadings placed before the court, the claimant failed to discharge the evidential burden of proof showing that he was not communicated with both the report of the committee set up by the 1st defendant to investigate the missing vehicle and the Police Report on the stolen vehicle FG 39 A51 which indicted the claimant. Counsel urged the court to resolve this issue against the claimant. In arguing issue two whether Exhibits OC6, OC7 and OC8 are admissible in Law, Counsel for the defendants pointed out that the claimant’s counsel objected to the tendering of Exhibit OC6. The said exhibit was pleaded in paragraphs 6 and 7 of the statement of defence and also in paragraphs 6 and 7 of DW1’s witness statement on oath. To counsel, having pleaded and referred to Exhibit OC6 in the statement of defence, the court is bound to admit same as evidence. Exhibit OC6 having been pleaded in the statement of defence is relevant to the case. The Supreme Court had laid to rest the three main criteria that govern admissibility of a document in evidence namely:- 1. Is the document pleaded; 2. Is it relevant to the inquiry being tried by the court? 3. Is it admissible is law? See Okonji vs. Njokanma (1999) 14 NWLR (Pt. 638) 250 @ 266; Duniya vs. Jimoh (1994) 3 NWLR (Pt. 334) 609; Oyediran vs. Alebiosu 11 (1992) 6 NWLR (Pt. 249) 550. According to counsel, Exhibit OC6 passed the three criteria set down by the Supreme Court in Okonji vs. Njokanma (supra). The document (Exhibit OC6) was pleaded. It is relevant to the case at hand and also it was certified, hence it is admissible in law. He urged the Court to attach probative value to Exhibit OC6. In the same vein, the claimant’s counsel also objected to the admissibility of Exhibit OC7 (Police Investigation Report on stolen vehicle FG 39 A51). Exhibit OC7 being a Police Investigation Report is a public document under section 102(a) of the Evidence Act. Counsel submitted that it is a Certified True Copy of Exhibit OC7 that can be admitted by the court. A Police Officer is a Public Officer and any document emanating or in custody of the Police especially those documents to be used in courts are public documents. See Tabik Investment Ltd. vs. G.T.B. Plc. (2011) All FWLR (Pt. 602) 1592 @ 1607. Exhibit OC7 emanated from the Police and was certified by the Police. To counsel therefore, Exhibit OC7 being a Certified True Copy of the original is admissible and should be given probative value by the court. He urged the court to attach weight to Exhibit OC7 and admit same as admissible in law. On the other hand the claimant’s counsel sought to tender Exhibit OC8 through DW1. Exhibit OC8 is a copy of the Police Investigation Report. The defendants’ counsel objected to the admissibility of Exhibit OC8. Counsel for the defendants submitted that Exhibit OC8 being a public document emanating from the Police can only be admitted by the Court in the form required by law. Exhibit OC8 was not certified being a Police Report. It is a public document that ought to be certified. Tabik Investment Ltd. vs. G.T.B. Plc. (supra). He urged the court not to attach any weight to Exhibit OC8 and reject same. In arguing issue three whether the claimant’s suspension by the defendants is within the Rules and Regulations governing the 1st defendant, it was the submission of counsel for the defendants that the 2nd defendant is a creation of statute to wit the Federal Polytechnics Act Laws of the Federation of Nigeria 2004 and also Section 17 of the Polytechnics Act. The 1st defendant is also guided administratively by its Federal Polytechnics Staff Manual (Exhibit OC5). The 2nd defendant is empowered by paragraphs 8.6, 8.7 of the Federal Polytechnic Staff Manual to suspend for good cause a staff of the Polytechnic. The staff so suspended shall be placed on half salary. The Polytechnic Staff Manual empowers the 2nd defendant to suspend the claimant with half salary pending the conclusion of investigation by the defendants. Also section 17(2) Federal Polytechnics Act empowers the 3rd respondent to suspend a member of staff in a case of misconduct. Section 17(2) of the Federal Polytechnic Act provides thus:- “The Rector may in a case of misconduct by a member of the staff which in the opinion of the Rector is prejudicial to the interests of the Polytechnic, suspend such member and any such suspension shall forthwith be reported to the council. 17(4) any person suspended pursuant to subsection (2) or (3) of this section, shall be placed on half pay and the council shall before the expiration of the period of three months after the date of such suspension consider the case against that person and come to a decision as to:- (a) Whether to continue such person’s suspension and if so on what terms (including the proportion of this emoluments to be paid to him. (b) Whether to reinstate such person, in which case the council shall resolve his full emoluments to him with effect from the date of suspension. (c) Whether to terminate the appointment of the person in question, in which case such a person will not be entitled to the proportion of his emoluments withheld during the period of suspension; or (d) Whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld) as the council may determine, and in any case where the council pursuant to this section decides to continue a person’s suspension or decides to take further disciplinary action against a person, the council shall before the expiration of a period of three months from such decision come to a final determination in respect of the case concerning any such person”. According to Counsel, the suspension of the claimant with half salary was based on Exhibit OC6 and Pursuant to Section 17(2) and 17(4)(a) of the Federal Polytechnics Act LFN 2004 which did not exonerate the claimant from being involved in the stolen vehicle No. FG 39 A51. The nature of the case against the claimant being criminal in nature was reported to the Police for further investigation. The Police after investigation wrote Exhibit OC7 which the 1st defendant acknowledged receipt on 29/11/2011. The defendants were anxious to receive the outcome of the Police investigation report and wrote the Police through Exhibits OC2, OC3 and OC4. In cases of misconduct bordering on criminality, all that is required of an employer is confronting the employee with the accusation made against him and requiring him to defend himself. See Arinze vs First Bank of Nigeria (2000) 1 NWLR (Pt. 639) 78. The defendants in this case complied by setting up a committee to investigate the circumstances surrounding the missing Polytechnic vehicle No. FG. 39 A51 with the claimant being a prime suspect in the missing vehicle and the claimants was invited to defend himself. Thereafter the committee set up by the defendants to investigate the missing Polytechnic vehicle made a Report (Exhibit OC6) wherein the claimant was not exonerated and the matter being a crime the defendants reported matter to the Police for further investigation. Counsel submitted that the Defendants acted within the law in placing the claimant on half salary pending the outcome of Police Investigation Report (Exhibit OC7) and Section 17(2) of the Federal Polytechnics Act as the allegation against the claimant was criminal in nature. It is submitted that the defendants had the right to suspend the claimant and to renew and extend the three months suspension until the case against the claimant was resolved and/or determined. The defendants were unable to conclude on the claimant’s case while waiting for Exhibit OC7 from the Police. When Exhibit OC7 was submitted to the 3rd defendant, the report did not exonerate the claimant and as such the claimant’s suspension was not lifted. The defendants are not under any obligation to prosecute the claimant even when Exhibit OC7 did not exonerate him. The defendants may choose to prosecute the claimant or not. See Uzondu vs. U.B.N Plc. (2009) 5 NWLR (Pt. 1133) 1 @ page 14. To counsel, the defendants acted within the provisions of the law when it suspended the claimant with half salary and he urged the court to so hold. It was purely coincidence that the claimant statutory retirement came shortly after the Exhibit OC7 was issued by the Police. In arguing issue four whether the claimant is entitled to the reliefs sought in this case from the evidence led and documentary evidence before the court, Counsel for the defendants pointed out that the claimant in his relief 6 as stated in the statement of fact is praying for:- “An order compelling the defendants to effect the promotion of the plaintiff to grade level CONTISS 9 and to pay the salary scale attendant thereto from 1st January 2011 to December, 2011”. Promotion, counsel submitted, is not automatically conferred on staff of the 1st defendant. It is only given on satisfactory performance subject to availability of vacancy. See Chapter 3 paragraph 3.1 (a) Federal Polytechnic Staff Manual (Exhibit OC5). Furthermore paragraph 3.3 of Exhibit 005 clearly states the basis for promotion. Promotion is a privilege and not a right. See paragraph 3.9 of Exhibit OC5. To counsel, promotion is not granted as a right to staff of the 1st defendant but on availability of vacancy; evidence of satisfactory performance of duty etc. The claimant has not shown satisfactory evidence to entitle him to promotion. The claimant has not led evidence to show that he was entitled to be promoted and was denied same. The claimant is therefore not entitled to promotion as claimed in relief 6 of the statement of fact. Counsel urged the court to so hold. The claimant having not been cleared of liability by the Committee set up by the 2nd defendant to investigate the stolen missing Polytechnic vehicle as shown in Exhibit OC6 and Exhibit OC7, and having indicted the claimant, the defendants acted within the law in interference with the plaintiff’s salary and benefits pursuant to section 17(4) of the Federal Polytechnics Act. According to Counsel, from the evidence placed before the court, the defendants have shown that they acted within the law, and the claimant has not proved that he is entitled to the reliefs sought. Counsel urged the court to resolve this issue against the claimant and dismiss this suit as being frivolous and lacking in merit, as being gold-digging, frivolous and unfounded. The Claimant’s written address raises the following three (3) issues for the determination of the Court:- (a) Whether the purported suspension of the claimant from duty with half salary from 1/12/2010 to 18/2/11 by the defendants vide Exhibit CC4 dated 1st December 2010 is valid and proper pursuant to the Federal Polytechnic Act Cap F17 LFN 2004 and the Federal Polytechnic Staff Manual. (b) Whether Exhibit OC6 and OC7 are admissible in the circumstance of this suit. (c) Whether the claimant has proved his entitlement to the reliefs claimed. In arguing issue one whether the purported suspension of the claimant from duty with half salary from 1/12/10 to 18/12/11 by the defendants vide Exhibit CC4 dated 1st December 2010 is valid and proper pursuant to the Federal Polytechnic Act Cap F17 LFN 2004 and the Federal Polytechnic Staff Manual, it was the submission of counsel that the letter informing the claimant of his suspension from duty with half salary is Exhibit CC4 dated 1st December 2010 which made reference to the findings and recommendation of the committee set up to investigate the case of the stolen vehicle No. FG 39A51. These findings and recommendation were never brought to the attention of the claimant before or even after Exhibit CC4 was written. See the evidence of CW1 under cross-examination on 25/1/14 where he denied ever receiving the committee’s report/findings. See also the evidence of DW1 under cross-examination on 3/10/14 where DW1 admitted that Exhibit OC6 is the defendant’s official document which was not made available to the claimant. According to the Claimant, Exhibit CC4 stated that it was the “management” in her meeting of 25th November 2010 that decided to place the claimant on suspension with half salary. Exhibit CC4 equally stated that the suspension with half salary was to last until “Police investigation continues” and until the case against the claimant is determined. The crucial issue to be resolved is whether Exhibit CC4 complied with the relevant provisions of the Federal Polytechnic Act Cap F17 LFN 2004, particularly Section 17 thereof. The defendants in their Final Written Address at page 9 paragraph D.12, argued that the claimant was suspended with half salary pursuant to Section 17 (2) of the Federal Polytechnic Act (F.P.A.). Section 17(2) F.P.A provides as follows:- “The Rector may in a case of misconduct by a member of the staff which in the opinion of the Rector is prejudicial to the interest of the Polytechnic suspend such member and any such suspension shall forthwith be reported to the council”. Counsel submitted that Exhibit CC4 failed to comply with the above provisions of Section 17(2) F.P.A. Exhibit CC4 shows that it was the “MANAGEMENT” that decided to suspend the claimant from duty. He further submitted that the position of the MANAGEMENT is not recognized in the F.P.A. there are three statutorily recognized bodies under the F.P.A to wit: (a) The Council (b) The Rector (c) The Registrar See: Section 3(1) F.P.A. Exhibit CC4 is therefore invalid and incapable of sustaining the suspension of the claimant. The recognized bodies with power to suspend a staff under the F.P.A are (1) the Council and (2) The Rector. He went further that there is no evidence before this Court that the Rector (assuming that he was the one that suspended the claimant) complied with the mandatory requirement of reporting the purported suspension to the council. See Section 17(2) F.P.A. He submitted that assuming (without conceding) that it was the Rector or the Council that suspended the claimant, Exhibit CC4 still failed to satisfy the requirement of Section 17(4) (a) – (d) F.P.A. in that Exhibit CC4 placed the claimant on suspension for more than three (3) months. Indeed Exhibit CC4 stated that the suspension with half salary was to last while “Police investigation continues or until the case against the claimant is determined”. There is nothing in the F.P.A that allows the defendants to suspend the claimant until conclusion of Police investigation or until the case against the claimant is determined. It is the duty of the suspending institution as the defendant to comply strictly with all requirements of the law in effecting suspension on it staff. See Dibia vs. Igwe (1998) 9 NWLR (Pt. 564) Pg. 78 @ 85 para. A. The failure of the defendants to furnish the claimant with the outcome of the investigation by the committee renders Exhibit CC4 null and void. Exhibit OC6 the purported Police Report was only produced for the first time in this court on 3/10/14, several months after Exhibit CC4 was issued to the claimant and after the claimant had left the services of the defendants. Counsel pointed out that Exhibit OC6 was not frontloaded when the Statement of Defence was filed. He then urged the court to discountenance the contention of the defendants’ counsel in his Final Address where he submitted at page 9 paragraph D: 12 that the claimant was properly suspended under the Federal Polytechnic Staff manual particularly paragraphs 8:7 as well as section 17 (2) F.P.A as the purported suspension of the claimant with half salary vide Exhibit CC4 was not carried by the Council or the Rector of the defendant, but by an unknown body called the “MANAGEMENT” in Exhibit CC4. Counsel also urged the Court to discountenance the argument of the defence counsel at page 11 paragraph D:14 where it was submitted that the defendants had the right to suspend the claimant and to renew and extend the three months suspension until the case against the claimant is resolved and or determined, as there is no evidence that the claimant was first placed on suspension for three months and that the same was renewed after expiration for another three months. According to the Claimants, this submission of the Defence Counsel runs contrary to the contents of Exhibit CC4 which placed the claimant on a straight suspension, “while Police investigation continues or until the case against him is determined”. See Exhibit CC4. The cases of Arinze vs. First Bank of Nigeria Plc (Supra) and Uzondo vs. U.B.N. Plc. (supra) cited and relied upon by the defence counsel are inapplicable to the facts of the instant case. Those cases deal with dismissal or termination of appointment and the defendants in those cases are not statutory bodies created by law. In the instant case, the defendant being statutory bodies are bound by the provisions of the law creating them. See: Ante vs. University of Calabar (2001) 3 NWLR (Pt. 700) pg. 239 at Pg. 259 para. H. Counsel for the Claimant urged the Court to discountenance the submission of learned counsel for the defendants at Page 12 paragraph D:17 where he argued that the suspension of the claimant till date is justified by Exhibit OC6 and OC7, which indicted the claimant. On this contention of the defence counsel, it is the Claimant’s submission that Exhibit OC6 and OC7 are not proof of the commission of the allegation made against the claimant. Indeed Exhibit OC7 is inconclusive as it stated that investigation into the allegation continues. Where there is an accusation of the commission of a criminal offence, the burden of proof to be established by the accuser before a criminal tribunal established by law is that the commission of the offence has been proved beyond reasonable doubt. An administrative body cannot usurp the constitutional function of the courts by making a finding of guilt in such a case. The investigative committee set up by the defendants and Police lack the capacity to find the claimant guilty in respect of the alleged missing vehicle. See Dangote vs. Plateau State (2001) 9 NWLR (Pt. 717) Pg. 132 @ 158 para. B – C. In concluding issue one, Counsel for the Claimant contended that the defendants acted ultra vires their powers under Section 17 F.P.A. Cap F17 LFN 2004 when they purported to suspend the claimant with half salary payment. “while Police investigation continues” or “while the case against him is determined” as stated in Exhibit CC4. In arguing issue two whether Exhibits OC6 and OC7 are admissible in the circumstance of this suit, Counsel for the Claimant pointed out that Exhibit OC6 is the purported report/findings of the committee set up to investigate the allegation of a missing vehicle. Exhibit OC7 is the alleged Police Report in respect of the subject matter of their investigation. None of the above exhibits was frontloaded as required by Order 9 Rule 1 (C) of the National Industrial Court Rules 2007. A look at both Exhibits shows that they were in existence as at 11/2/14 when the defendants filed their Statement of Defence but yet the defendant chose not to frontload them, but rather to spring surprise at the claimant by introducing them for the first time during their defence. Exhibit OC7 being Police Report of Investigation is a public document within the meaning of Section 102 (11) of the Evidence Act 2011 and therefore the only legally admissible secondary evidence of it is a Certified True Copy thereof. See section 89(e) Evidence Act 2011. DW1 who tendered Exhibits OC6 and OC7 is not qualified to tender them as she knew nothing of what transpired before both Exhibits OC6 and OC7 were written. Should the court admit them as Exhibits, the claimant would have been denied of the opportunity of cross-examining the makers of both Exhibits who themselves were not called as witnesses in this suit Counsel pointed out further that DW1 clearly admitted under cross-examination that the claimant was not given a copy of Exhibit OC6. Contrary to the admitted mode of communication between the defendants and the claimant, DW1 claimed to have communicated the outcome of Exhibit OC7 orally. Counsel urged the court to disregard this assertion by DW1 that the content of Exhibit OC7 was communicated orally to the claimant. The effect of this is that until the claimant’s retirement on 18/12/11, the defendants did not communicate to him the outcome of the Police Investigation. He therefore urged the court to reject Exhibits OC6 and OC7 as inadmissible evidence. In arguing issue three whether the claimant has proved his entitlement to the reliefs claimed, it is the submission of counsel that the claimant proved his claims before this Court and is therefore entitled to the reliefs as claimed. The claimant has led credible and reliable evidence in proof his claims. The Claimant has proved by Exhibits CC1 and CC2, that he was a staff of the defendants until his retirement on 18th December 2011. Both parties are ad idem on this point. The claimant has also shown by Exhibits CC3, CC4 and CC10A-M that his employment was wrongfully and unlawfully tampered with following the suspension with half salary placed on him by the defendants acting under an unknown body called the “MANAGEMENT” (See Exhibit CC4. See also Section 17 of the Federal Polytechnic Act Cap F17 LFN 2004). The claimant pleaded and gave credible and reliable evidence in support of his claims before the Court. Counsel referred to Paragraphs 18 of the Statement of Claim and paragraphs 4 to 18 of the deposition on Oath of CW1. The evidence of CW1 was neither controverted nor challenged by the defendants, whose only defence to the claims is that the suspension with half salary of the claimant was done in pursuance of section 17 (2) F.P.A Cap F17 LFN 2004, which the claimant submits is false. Where a piece of evidence is not controverted or challenged by the other party, the court has no option than to accept the same and to rely thereon. See Government of Ekiti State vs. Ojo (2006) 17 NWLR (Pt. 1007) pg. 130 paras. B – C, where the court held interalia that: “Where the head of special damages is not challenged both in the pleadings and evidence and is not controverted and the evidence is by its nature credible, the trial court has no option but to accept it and act upon it.” Counsel urged the court to accept the unchallenged and uncontroverted evidence of CW1 as proof of his claims in paragraphs 18 of the Statement of Claim. The claims in paragraphs 18 (4) of the Statement of Claim being in the nature of special damages are specifically and strictly proved by the claimant as CW1. See Ngilari vs. Mothercat Nigeria Ltd. (1999) 13 NWLR (Pt. 636) Pg. 626 @ 647 paras. F - G. On claim for general damages, Counsel submitted that the claimant is entitled to the award of the sum claimed as general damages having regard to the financial hardship, odium and ridicule which the claimant has suffered as a result of the wrongful actions of the defendants. See paragraph 17 of the Statement of Claim. See also paragraph 17 of the Deposition on oath of CW1 which was neither challenged nor controverted by the defendants. In concluding, Counsel for the claimant urged the court to resolve issue three and indeed all the issues in favour of the claimant and to grant all the reliefs of the claimant. The defendants filed a reply on points of law to the Claimant’s final written address. In the said reply, counsel for the defendants submitted that the claimant’s Final Written Address was filed outside the twenty-one (21) days period as required by Order 19 Rule 13 (3) of the National Industrial Court Rules 2007 and no leave of court was sought to file outside the time allowed by the Rules of the Court. He urged the Court to discountenance the Final Written Address filed by the claimant and strike same out. Assuming without conceding that the final Written Address of the claimant is proper before the court, Counsel replied on points of law to the claimants Final Address as follows: As regards the Claimant’s argument at paragraph 2.10 and 2.11 of his Final Address that Exhibit CC4 did not specify that the claimant was suspended for “three months” and his suspension extended further, the defendants submitted that the claimant’s suspension by Exhibit CC4 was within the provisions of the enabling statute i.e. Section 17(4) of the Federal Polytechnic Act Cap 17 LFN 2004. Assuming again without conceding that the defendants exceeded the required three (3) months or six (6) months as the case may be, the suspension of the claimant cannot be a nullity on that premise. See Bamgboye vs. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 @ 348 per Uwaifo J.S.C. “Arguments have been canvassed on behalf of the appellant that because his suspension lasted beyond 3 months it was in contravention of section 15(4) of the Act and therefore it rendered the disciplinary proceedings a nullity. I think this is a complete misconception of that provision of the Act. I believe one can say that the purpose of giving a time limit in that provision is to ensure that a person on suspension during a disciplinary proceeding is not made to suffer undue hardship by an excessive length of suspension when he is placed only on half pay. I do not see how by exceeding 3 months the disciplinary proceeding is rendered a nullity. In fact the council is empowered to exceed the ‘initial 3 months’ period by not more than further 3 months. From what happened in the present case, the suspension lasted some 5 months. Unless there is clear evidence to the contrary, I must assume that the Council took liberty under section 15(4) read as a whole to exceed the initial 3 months. In any event, I am of the view that if the period allowed, whether the initial 3 months or the further 3 months, is exceeded, that will not render the disciplinary proceedings a nullity”. Counsel submitted that on the authority Bamgboye vs. University of Ilorin (Supra) that even where the suspension of the claimant exceeds three (3) months or further three (3) months, as the case may be such cannot render the disciplinary proceedings a nullity. Exhibits “OC3” and “OC4” were written by officers of the 1st defendant to the Police on the need for the Police to expedite action on concluding its investigation. Exhibits “OC3” and “OC4” show good faith on the part of the defendants. Counsel urged the Court to discountenance the submission of counsel for the claimant in paragraphs 2.11, 2.12 and 2.13 that the suspension of the claimant was ultra vires the powers of the defendants under Section 17 of the Federal Polytechnic Act Cap. F17 LFN 2004. Concluding, Counsel for the defendants urged the Court to dismiss the suit with punitive cost for being frivolous and unfounded. Upon thoroughly examining this case, one issue appears to me sufficient to resolve the questions or issues involved in this case. The issue is: “Whether the claimant has proved his case as to entitle him to the reliefs he seeks in this suit.” In determining this issue, it also appears to me appropriate to consider the issue on the basis of the individual claims sought by the claimant. The claimant’s relief 1 is for a declaration that the suspension of the claimant by the defendants from duty from 1st December 2010 to 18th December 2011 is null and void and of not effect. In an action of this nature where an employee complains or alleges that the termination, dismissal or suspension from his employment is wrongful or unlawful or null and void, the employee is saddled with the onus to plead and prove the terms of his contract of employment and in what manner the said terms of his contract were breached by the employer. This is because a contract of service is the bedrock and foundation upon which an employee must found his case. It is not the duty of an employer, who is the defendant in an action brought by an employee, to prove that the contract of employment was not breached. See PETROLEUM TRAINING INSTITUTE vs. MATTHEW (2012) All FWLR (Pt. 623) 1949 at 1967. The requirement for the burden on the employee/claimant was expressed by the Supreme Court in ZIIDEEH vs. RIVERS STATE CIVIL SERVICE COMMISSION (2007) All FWLR (Pt. 354) 243 at 258 as follows- “It has been firmly established that when an employee complains that his employment has been wrongfully terminated, he has the onus (a) to place before the court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. The law is that it is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts” See also KATTO vs. C.B.N (1999) 6 NWLR (Pt. 607) 390 at 405; W.A.E.C vs. OSHIONEBO (2007) All FWLR (Pt. 370) 1501 at 1512. The point must be made here that whether the subject of the complaint is termination of employment, dismissal or suspension, the principle on the onus of proof placed on the employee is the same. Therefore, in this case where the claimant has alleged and sought the order of this court to declare that his suspension was null and void, he has the onus to first place before the court the terms of his contract of employment and then prove in what manner the terms of his employment was breached in respect of his suspension. The evidence of the claimant in proof of his case is that the claimant was an employee of the defendants since the 17th May 1978 until the 18th December 2011, when he retired from the services of the Defendants having attained the mandatory retirement age of 60 years. Before his retirement however, sometime in September 2010 there was an incident of a missing vehicle with Registration No. FG-39-A51 belonging to the 1st defendant. Following the incident and after he appeared before the 1st defendant’s investigation committee, the claimant received Exhibit CC4 dated 1st December 2010 placing the claimant on suspension with half salary pending the conclusion of police investigation into the incident or conclusion of the case against the claimant. The claimant testified further that until his retirement from the 1st defendant’s service, he was not told the outcome of the defendants or police investigation despite appearing before the defendants’ investigation committee and the police. To the claimant, no report in which he was indicted in respect of the missing vehicle was communicated to him and he was never charged to any court in respect of the missing vehicle. He severally pleaded with the defendant vide Exhibits CC5, CC6 and CC7 to lift the suspension but all to no avail. The claimant remained in suspension with half salary until he retired in December 2011. The above were also the facts pleaded by the claimant and it represents the whole of the claimant’s case. I have reviewed the claimant’s pleadings and evidence all over but I do not find anywhere where he set out the terms of his employment nor how the terms have been breached during his suspension. The claimant did not plead the terms of his contract neither did he place the terms of the contract before the court. The whole of the claimant’s case is as I have summarized it above. From the claimants pleadings and evidence, he merely alleged that he was suspended with half salary; that no report of the investigations were communicated to him and that he was neither indicted nor charged to court. He however failed to tell this court how these conducts of the defendants were breaches of the terms of the condition of service or on what basis he wants his suspension declared null and void. In other words, the claimant did not show to this court the way and manner he can be suspended by virtue of the condition of service and in what manner the procedure was not followed by the defendants. More worrisome is that the claimant’s pleading did not plead nor link the claimant’s employment to any condition of service or to any regulation governing his employment. In paragraph 2.03 to 2.05 of his written address, the claimant’s counsel argued that Exhibit CC4 did not comply with Section 17 the Federal Polytechnics Act and he went on to argue on why it didn’t comply with the law. With respect to counsel, these matters raised in the address are what the claimant is expected to plead and prove in evidence. The claimant’s counsel’s attempt to supply the missing links in his written address cannot help the claimant’s case. It has been judicially settled that address of counsel cannot take the place of pleading or evidence. See IBIKUNLE vs. LAWANI (2008) All FWLR (Pt. 398) 359. I find that the claimant has failed to prove the terms of his contract of employment and how it has been breached by the defendants during his suspension. Therefore, the claimant has not satisfied the proof required to entitle him to the declaration he sought in relief 1. I now turn to the claimant’s reliefs 2, 3 and 4. In these reliefs, the claimant seek a declaration that the half salary being paid to him during the period of his suspension is null and void and of no effect and an order for the payment of the sum of N956, 527.19 being the total sum of deductions from his salaries from 1st December 2010 to 18th December 2011. The sums were tabulated as special damages. In his evidence, the claimant testified that in addition to his suspension on 1st December 2010, he was also placed on half salary and until his retirement on 18th December 2011, the defendants were unlawfully deducting half of his salaries which sum amounted to N956, 527.19. The claimant put in evidence his Personal Record of Earnings Deductions as Exhibit CC 10 to establish the deductions from his salaries. In Paragraphs 11, 15 and 17 of the claimant’s statement of facts, the claimant alleged that these deductions from his salaries were unlawful but the claimant failed to either give the particulars of the unlawfulness of the deductions alleged or prove in what manner the deductions were unlawful. During suspension, the employment continues to subsist and the employee is entitled to his salaries during the period except there is a condition of service which permits the employer to stay payment of salary or pay half salary during period of suspension. See MOBIL PRODUCING NIG. UNLTD. vs. UDO (2009) All FWLR (Pt. 482) 1171. Therefore, in a contract of employment, there is no implied contractual right on the part of the employer to suspend an employee without pay or half pay on disciplinary grounds. For there to be no pay or payment of half salary, it must be expressly stated in the contract of service between the parties. In defence of this claim, the defendant’s witness, DW1, testified that based on the report of the investigation panel of the defendants on the missing vehicle, the defendants suspended the claimant and placed him on half salary pending the outcome of final investigation. The witness stated further that the action of the defendant was done in accordance with the internal disciplinary procedure of the 1st defendant contained in the manual. And in paragraph 20 of his evidence, DW1 stated: “In all this foregoing actions, they have not in any way acted wrongly against the claimant but acted in strict conformity with extant laws and the terms of its contract of employment with the claimant embodied in the Polytechnic Staff Manual. The said Polytechnic Staff Manual is pleaded in the statement of defence” Through the witness, a Certified True Copy of the said Polytechnic Staff Manual was admitted in evidence as Exhibit OC5. Regulation 8.6 of exhibit OC5 provides: “For good cause, any member of staff may be suspended from office or his appointment terminated by council…” Regulation 8.7 state: “Any person suspended pursuant to regulation 8.5 or 8.6 above, shall be placed on half pay and the council shall before the expiration of the period of three months after the date of such suspension consider the case against that person and come to a decision …” In his address, the defendants counsel also relied on the Federal Polytechnics Act as permitting the defendants to suspend the claimant and put him under half pay. Counsel cited Section 17 of the Act. Subsection 4 of the section has similar content as regulation 8.7 of Exhibit OC5. The subsection provides that any member of staff suspended shall be placed on half pay. It is clear from the provisions of Section 17 of the Polytechnics Act and regulations 8.7 of exhibit OC5 that the defendants are permitted to place the claimant on half salary while on suspension. I find, in the result, that the defendants have adduced ample evidence to show that the terms and condition of service between the parties empowers the defendants to suspend the claimant with half pay. The defendants have also tendered the staff manual containing such terms of the employment. I find nothing unlawful in the payment of half salary to the claimant while he was on suspension. The claimant’s counsel has however contented in his address that in Exhibit CC4, the suspension and half salary was placed by “management” and not by the Council or Rector as required under Section 17 of FPA. To the claimant’s counsel, that makes the half salary imposed on the claimant unlawful. As I have similarly held earlier, the claimant did not make this an issue in his pleadings or evidence. Furthermore, it must be said here that the contention by the claimant’s counsel on this point is contrary to what the claimant has pleaded. In paragraph 6 of the claimant’s statement of facts, it was pleaded thus: “The claimant avers that sometimes in September 2010, there was an incident involving a missing vehicle with registration No. FG-39-A51 from the defendants’ premises. Sequel to this, the defendants by letter dated 1st December 2010 (hereby pleaded) placed the claimant on suspension with half salary pending the conclusion of investigation into the incident.” From these facts, the claimant’s case is that he was suspended and placed on half salary by the defendants. The defendants in this case are the Polytechnic, the Council and the Rector. It is never the claimant’s case that he was suspended and placed on half salary by “management”. He cannot change his case through the address of his counsel. The claimant is bound by what he pleaded. In the written address of the claimant’s counsel, counsel also attempted to make an issue of the length of time involved in the claimant’s suspension and payment of half salary. Counsel submitted that Exhibit CC4 placed the claimant on a straight suspension and there is no evidence that it was for an initial 3 months or extended later for another 3 months. This, he said, offends section 17 of FPA. Section 17 FPA requires that the council must within 3 months of the suspension of a staff consider the case against that staff and where the council decides to continue the staff’s suspension or decides to take further disciplinary action against the staff, the council shall, before the expiration of a period of three months from such decision, come to a final determination in respect of the case concerning the staff. From this provision, the suspension of the claimant and the payment of half salary to him were not to last for more than 6 months before the defendants determine the case against him. I have observed from the evidence before this court in this case that the suspension of the claimant lasted for more than 6 months. But does that nullify the claimant’s suspension or the half salaries he was paid? I think not. In a similar scenario, the Supreme Court in BAMGBOYE vs. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) 290 at 348, per Uwaifo J.S.C, observed thus- “Arguments have been canvassed on behalf of the appellant that because his suspension lasted beyond 3 months it was in contravention of section 15(4) of the Act and therefore it rendered the disciplinary proceedings a nullity. I think this is a complete misconception of that provision of the Act. I believe one can say that the purpose of giving a time limit in that provision is to ensure that a person on suspension during a disciplinary proceeding is not made to suffer undue hardship by an excessive length of suspension when he is placed only on half pay. I do not see how by exceeding 3 months the disciplinary proceeding is rendered a nullity. In fact the council is empowered to exceed the ‘initial 3 months’ period by not more than further 3 months. From what happened in the present case, the suspension lasted some 5 months. Unless there is clear evidence to the contrary, I must assume that the Council took liberty under Section 15(4) read as a whole to exceed the initial 3 months. In any event, I am of the view that if the period allowed, whether the initial 3 months or the further 3 months, is exceeded, that will not render the disciplinary proceedings a nullity”. On this authority, I hold that notwithstanding that the claimant’s suspension and half pay lasted for more than the periods specified in Section 17 FPA, the placement of the claimant by the defendants on half salary is not unlawful. A declaration that the payment of half salary to the claimant is null and void cannot be made. Having found that the half pay to the claimant during the period of his suspension was lawful, can this court order the deducted sums to be paid to the claimant? I also think not. There is nowhere in Exhibit OC5 or the FPA where it is provided that such deducted sums from the salary of a staff facing disciplinary action of suspension may eventually be paid to the staff. The claimant too, has not satisfied this court, besides merely alleging that the deductions were unlawful, that he is entitled to payment of the deducted sums. Since it is my finding in this judgment that the half pay was in order, I find no basis to order the defendants to pay. Consequently, reliefs 2, 3 and 4 sought by the claimant have no merit. In paragraph 12 of the statement of facts, the claimant alleged that upon his retirement, he approached his pension fund managers for the payment of his pension contributions but he was told that the defendants had placed a caveat on the account. The claimant testified that as a result of the caveat, he could not access or withdraw from his pension. It is on the basis of these facts the claimant seek an order of this court directing the defendants to lift the caveat placed on the withdrawal of his Pension Contributions with Pension Alliance Ltd. The defendants did not deny this allegation. They are deemed to have admitted the fact that they placed a caveat on the claimant’s pension. Section 4 of the Pension Reform Act provides that a holder of a retirement savings account, upon retirement or attaining the age of 50 years, whichever is later, shall be entitled to utilize the balance standing to the credit of his retirement savings account. Therefore, the claimant’s pension is a statutory right and he cannot be denied same unless so expressly allowed by statute. From the provisions of the FPA and the Exhibit OC5, the defendants have not been given any power to place such caveat on the pension of a retired staff who was facing disciplinary action before retirement. The Pension right of the claimant is protected by statute and the pension is accessible to the claimant only at retirement. The claimant has testified that he was on suspension until he retired from service and no other disciplinary action was taken against him despite the investigations. The defendants too have not shown that it was the decision of the defendants, after conclusion of investigations, to tamper with the claimant’s pension or deny him access to it. In the light of the foregoing, Section 19 of the NIC Act empowers this court to order compliance with any provision of any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear. Issue of pension is one of the matters this court has jurisdiction to hear in section 254C (1) (k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Therefore, since the defendants did not deny the allegation and did not give any legal basis for the action, it is my view that such a caveat placed on the claimant’s pension contribution with Pension Alliance Ltd is wrongful and ought to be lifted forthwith. In view of the findings of this court in respect of reliefs 1 to 4, the claimant’s relief 6, which is for an order compelling the defendants to effect his promotion to grade level CONTISS 9 and to pay the salary scale attendant thereto from 1st January 2011 to December 2011, cannot also be granted. It is the evidence of the claimant that he was due for promotion in 2011 but the defendants denied him the promotion. I have observed from the claimant’s case that he was placed on suspension on 1st December 2010. Therefore as at the said dates of January 2011 to December 2011, the claimant was on suspension. In AKINYANJU vs. UNILORIN (2005) 7 NWLR (Pt.923) 87, suspension was said to mean “To defer, lay aside, or hold in abeyance.” Also, in LONGE vs. FIRST BANK PLC (2010) LER SC 116/2007 at PAGE 52, the Supreme Court held that- “Suspension operates to suspend the contract” Further in UNIVERSITY OF CALABAR vs. ESIAGA (1999) 4 NWLR (Pt. 502) 719 at 723, Suspension was defined as- “A temporary privation or deprivation, cessation or stoppage of or from privileges and rights of a person. The word caries or conveys a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling for a fixed or terminal period or indefinitely”. From these authorities, it is clear that when an employee is on suspension, the contract and the employee’s rights and privileges are also suspended. Therefore, having been placed on suspension as at January 2011 to December 2011, the claimant’s right to promotion was also suspended. He was still on suspension when he retired. The issue of his promotion has thus been overtaken by his retirement. I do not see how I can now order the defendants to promote him in retirement. Consequently, the claimant’s claim for promotion and the salaries that ought to accrue to him upon the promotion fails. The claimant has also sought general damages in the sum of N9,043,472.81 for unlawful interference with his salary, benefits and promotion from December 2010 to December 2011. By its nature, general damages are the pecuniary compensation which the law implies in favour of a person who has suffered loss or injury through the unlawful act or omission of another. General damages flow from the wrongful act of another and it is meant to compensate for the injury sustained. For the claimant to be entitled to general damages in this case, he must have succeeded in his claims against the defendant and show that as a result of the unlawful acts of the defendants, he suffered some injuries or damages. See USMAN vs. OWOEYE (2003) 9 NWLR (Pt. 828) 221. It is my finding in this judgment that the claimant has not established that his suspension by the defendants and the half pay imposed salary being paid to him during the period of the suspension was wrongful or unlawful. In fact, it is my finding also that the defendants were justified by virtue of Exhibit OC5 and the Federal Polytechnics Act to half the claimant’s salary when he was suspended. In view of these findings, I do not see any damage or injury that has accrued to the claimant to entitle him to general damages. The claimant’s claim for general damages fails. In the final result, I hold as follows- 1. The claimant’s reliefs 1, 2, 3, 4, 6, 7, and 8 fail and are hereby dismissed. 2. Relief 5 succeeds. Accordingly, the defendants are ordered to lift the caveat placed on the claimant’s pension with Pension Alliance Ltd and allow the claimant unhindered access to his pension contributions. I make no order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge