18/01/2025
*GLOBE MOTORS HOLDINGS NIGERIA LTD. vs. OYEWOLE(2022)LCN/16738*
*(CA)*
*ISSUE:* SUSPENSION OF AN EMPLOYEE-Whether suspension of an employee amounts to termination of his appointment; Whether by dint of Section 17 (1) (b) of the Labour Act, 2004, an employee is not entitled to his wages during the period of suspension in the absence of a term with respect to suspension of the employee without pay in the contract of employment(Issue is mine)
*PRINCIPLE:*
"Under the second issue, the Appellant accused the lower Court of raising suo motu “the issue of the length of time when the Claimant/Respondent was indefinitely suspended should be with pay or without pay” without giving her the opportunity to address the Court on the issue before delivering judgment. A look at the Respondent’s Statement of Claim and his adopted written evidence before the lower Court shows consistency on one thread, that is, that the whole claim of the Respondent was for payment of arrears of salary for the period of his suspension, i.e., September, 2007 to September, 2011. This was indeed the crux of the claim as well as the defence. The Appellant’s Statement of Defence maintained that the Respondent was not entitled to salary during the period of his indefinite suspension. Learned counsel for the Appellant made that issue so central in the Defendant’s Final Written Address at pages 39 - 49 of the Record of Appeal, particularly at page 41 thereof, that he framed issue 1 for determination of the lower Court in the following words: “Whether the Claimant is entitled to be awarded salary arrears for September, 2007 - September, 2011 (N1,680,000.00) being salary for the period when the Claimant was under indefinite suspension.” The lower Court merely asked the question whether the length of time of the Respondent’s suspension should be with or without pay, and that was the essence of the Respondent’s claim before the lower Court. In formulating issue 1 for determination in his Final Written Address before the lower Court, learned counsel for the Appellant asked if the Respondent was entitled to salary during the period of his suspension between September, 2007 and September, 2011. If the phrase “September, 2007 - September, 20011” as used by the Appellant’s counsel in his issue 1 for determination before the lower Court is not “length of time”, I wonder what is. The Appellant’s query with the phrase “length of time” after he has equally used it, albeit in a different semantic, is misplaced and calculated to mislead. It is crystal clear that it was not the lower Court that raised the issue suo motu, as alleged by the Appellant, but the parties themselves and their counsel, as counsel to the Appellant adequately addressed and argued against the said issue before the lower Court handed down its judgment. It is therefore wrong for the Appellant’s counsel to allege that the issue was raised suo motu by the lower Court without affording the Appellant the opportunity to address the Court.
The next important question arising under this issue is whether the Respondent is entitled to payment of his wages during the period of indefinite suspension. The question concerns the status of an employee who has been suspended from his employment either for a fixed term or indefinitely, as the Respondent in this appeal. Suspension is a temporary cessation of employment either pending investigation for an alleged wrong or as a disciplinary procedure for misconduct by the employee. These are the two types of suspension. Suspension of an employee from work only means suspension from ordinary duties assigned to him by virtue of his employment or office. See Esiaga vs. University of Calabar (2004) LPELR-1169 (SC); Akinyanju vs. University of Ilorin (2005) 7 NWLR (Pt.923) 87; National Judicial Council vs Aladejana (2014) LPELR-24134 (CA). Either pending investigation or as a punishment, suspension does not amount to termination or dismissal from the employment, the contract of employment remains subsisting until it is formally or legally brought to an end by either party. In this light, I discountenance the submission of the Appellant urging the Court to hold that the suspension of the Respondent amounts to termination of his appointment. Suspension and termination are two distinct terms with different legal consequences, one cannot be a substitute or synonymous with the other. Under the common law, a right to suspend an employee is not an implied term of an employment contract. Therefore, where a contract of employment is not one with statutory flavour, for suspension to be validly made it must be so provided in the employment contract or in the Handbook regulating the terms of the employment.
I need to state however that the validity of the Respondent’s suspension by the Appellant is not in contention in this appeal and therefore I say no more on that.
Since suspension is not a termination of the employment contract nor a dismissal of the employee, the implication is that the employee is still in continuous employment of the employer until he is recalled or formally terminated or dismissed. Pending his recall or dismissal, a suspended employee is entitled to his wages or salary during the period of suspension, unless the terms of the contract of employment or the letter of suspension itself is specific that the suspended employer will not be paid salaries during the period of suspension. In the instant appeal, the letter suspending the Respondent, Exhibit B3, did not state that the Respondent will not be paid salaries. The letter of employment, Exhibit B1, did not contain any terms with respect to suspension of the employee without pay. Furthermore, there is no Employees’ Handbook or collective agreement specifying the terms of employment, including rules with regards to suspension, indefinite or for a fixed term. Where a suspension did not indicate that the suspended employer will not be paid salary or will be on half pay, the suspended employer is entitled to his emoluments during the period of the suspension. In justifying the indefinite suspension of the Respondent without pay, learned counsel placed heavy reliance on Section 17 (1) (b) of the Labour Act, 2004. I wish to state that Section 17 (1) (b) of the Labour Act cannot aid the Appellant. The Section is dealing with the provision of work by the employer and the consequences of not providing work to an employee due to an emergency. In an emergency, where no work is provided, the employer is still obligated to pay wages to the worker except where the worker is on suspension during that period of emergency. The interpretation placed on that section of the Labour Act by learned counsel for the Appellant is utterly wrong. In Longe vs. FBN Plc (supra), the Supreme Court had this to say on the import of suspension of an employee: “Admittedly, an employer suspending his employee may impose terms of the suspension but in a general sense suspension of an employee from work only means the suspension of the employee from performance of the ordinary duties assigned to him by virtue of his office. Suspension is not a demotion and does not entail a diminution of rank, office or position. Certainly, it cannot import a diminution of the rights of the employee given under the law.”
The basic and most important right of an employee is the right to his wages, and by the above quoted decision, the Appellant is obligated to pay the Respondent his wages during the period of suspension as his right to the wages has not been affected by the indefinite suspension. This point was further emphasized by this Court in the case of Bamisile vs. NJC & Ors. (2012) LPELR-8381 (CA).
The lower Court was therefore on sound footing when it adjudged the Appellant liable to pay the Respondent his salary for the period of suspension. As a consequence of my finding above, I resolve the second issue against the Appellant." Per SIRAJO, JCA.
*AYOOLA vs. THE GOVERNING BOARD OF THE NIGERIAN NATIONAL MERIT AWARD & ORS.(2022)LCN/16327(CA)*
*ISSUE:* SUSPENSION OF AN EMPLOYEE-Whether suspension of an employee imports a diminution of the rights of the employee given to him under the law(Issue is mine)
*PRINCIPLE:*
"The grouse of the Cross Appellant is that the lower Court failed to properly examine the case postulated on Cross-Appellant’s pleadings coupled with the oral and documentary evidence given before the lower Court when the trial Court failed to hold:
1. That the suspension of the Cross-Appellant was wrong.
2. That the Cross-Appellant proved the salary claimed or his entitlement to it.
3. That the Cross-Appellant proved entitlement to reliefs iv, v and vi of reliefs sought before the lower Court.
4. Correctly on when the tenure of office of the Cross-Appellant as Claimant would end.
The law is settled that an Appellant who complains that the decision of the trial Court is perverse for lack of adequate or proper evaluation of oral and documentary evidence, must prove or establish that the Court of first instance made improper use of opportunity of seeing the witnesses testifying before him. He must show that there was misapplication of oral and documentary evidence placed before the lower Court. He must endeavour to prove that the lower Court failed to ascribe probative value to the evidence led or that wrong inferences were drawn leading to wrong conclusions or miscarriage of justice making it imperative for the Appellate Court to intervene and reevaluate the oral and documentary evidence. See
1. CHIEF JAMES O. OLONADE & ANOR. VS. H. B. SOWEIMO (2014) 14 NWLR (PT.1428) 472 AT 495 G-H TO 496 per M. D. MOHAMMED who said: "Firstly, evaluation of relevant and material evidence and the ascription of probative value to such evidence are the primary functions of the trial Court which saw, heard and assessed the witnesses as they testified. Where the trial Court unquestionably evaluate the evidence and justifiably appraises the Facts, as it has been manifestly shown to have been done in the instant case it is not the business of the lower Court, an appellate Court, to substitute its own views for the views of the trial Court. The application of this trite principle by the lower Court cannot, certainly, be a basis for the reversal of the Court’s decision. See Mogaji v. Odofin (1978) 4 SC 91; Ojokolobo v. Alamu (1998) 9 NWLR (Pt.565) 226 and Sha v. Kwan (2000) 5 SC 178 (2000) 8 NWLR (PT.670) 685.
Secondly, in a civil matter such as this, the Court decides the case on the balance of probabilities or preponderance of evidence. The trial Court does this by first deciding which evidence it accepts from each of the parties, putting the accepted evidence adduced by the plaintiff on one side of the imaginary scale and that of the defendant on the other side of the scale weighing them together. The Court then decides which side’s evidence is heavier, not by the number of witnesses called by either party or on the basis of the one being oral and the other being documentary, but by the quality or probative value of the evidence be it oral and/or documentary. See Fagbenro v. Arobadi (2006) 7 NWLR (PT.978) 172.”
2. MRS ELIZABETH IRABOR ZACCALA VS. MR KINSLEY EDOSA & ANOR. (2018) 6 NWLR (PT.1616) 528 AT 545 B-D per M. D. MUHAMMAD, JSC, who said: "It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility arises out of the fact of the advantage it has of seeing and, from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences.
See Atoyebi & Anor. v. The Governor of Oyo State Ors. (1994) 5 NWLR (Pt.344) 290; Dakat v. Dashe (1997) 12 NWLR (Pt.531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC), (2014) 2 NWLR (Pt.1392) 483.”
3. CHIEF NYA EDIM EKONG VS. CHIEF ASUQUO E. OTOP & 7 ORS. (2014) 11 NWLR (PT.1419) 459 AT 573 F-H per OKORO, JSC, who said: "It is trite that all documents tendered before a Court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before the Court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial Court. Where the trial Court fails to examine documents tendered before it, an appellate Court is in a good position to evaluate such exhibits. See Ayeni v. Dada (1978) 3 SC 35; Bamgboye v. Olarewaju (1991) 22 NSCC (Pt.1) 501, (1991) 4 NWLR (Pt.184) 132. I think since Exhibit C was tendered before the trial Court and was part of the record of appeal before the Court below the Justices of that Court were eminently qualified to draw such inferences as they found fit and proper so to do.”
It must however be borne in mind that it is not every slip or error by a lower Court that will lead to a reversal of the lower Court’s decision unless the findings of the said Court are not supported by oral and documentary evidence on record.
The Cross-Appellant tendered the letter of employment Exhibit C3 which states thus:
“THE PRESIDENCY
THE GOVERNING BOARD
NIGERIAN NATIONAL MERIT AWARD SECRETARIAT
Ref: 8358/S.28/1
Date: 23rd June, 2014
Merit House:
Plot 22, J. T. Aguiyi Ironsi Street,
Maitama, Abuja.
Email: [email protected]
Website: www.nnma.gov.ng
Prof. G. B. Ayoola,
President,
Farm and Rural Infrastructure Foundation,
No. 1, Gbolayade Ayoola Close,
Sangan/Ayigbiri,
Ojoo,
Ibadan
Dear Prof. Ayoola,
OFFER OF APPOINTMENT AS SECRETARY TO THE NIGERIAN NATIONAL MERIT AWARD (NNMA)
On behalf of the Governing Board of the Nigerian National Merit Award (NNMA), it is my pleasure to appoint you as the Secretary of the Nigerian National Merit Award, for the initial period of 2 (two) years, subject to renewal, as to be determined by the Board.
The Nigerian National Merit Award (NNMA) was established in 1979 by Decree No.53, as amended by the Nigerian National Merit Award Act No.96 of 1992 to award the Nigerian National Order of Merit (NNOM) Award to deserving citizens of Nigeria at home and in Diaspora for academic and intellectual attainments that contribute to national endeavours in Science, Medicine, Engineering/Technology, and the Humanities, including Arts and Culture and other fields of human endeavour. The NNOM is an order of dignity that entitles recipients to use the designation “Nigerian National Order of Merit (NNOM)” after their names; receiving a cash prize, a certificate and medal, as well as other privileges as are enjoyed by recipients of high levels of National Honours.
The functions of the Board are to;
(i) conduct the Award on the NNOM in accordance with the Act;
(ii) institute measures designed to promote intellectual and academic excellence among Nigerians for this purpose and liaise with academic professional and research institutions in Nigeria;
(iii) manage the Nigerian National Merit Award Endowment Fund; and
(iv) do such other things which in the opinion of the Board are necessary to ensure the efficient performance of the functions of NNMA under the Act.
As Secretary to the Governing Board, you are the Head of the NNMA Secretariat, operating its structure and supervising the administrative and other functions of all staff as directed by the Board. You will serve as Chief Accounting Officer responsible to the Board on all matters and serve as the direct link to the Office of the Secretary to the Government of the Federation. You are to ensure that the NNMA Secretariat remains a lean and efficient platform for efficiently assisting the Board in identifying, recognizing and rewarding Nigerians who have distinguished themselves in academic excellence and outstanding intellectual achievements in the fields of Science, Technology, Medicine, Humanities, Arts and Culture and any other fields of human endeavour.
Your appointment is with effect from 5th May, 2014 and your condition of service will be in line with existing rules and provisions within the federal public service.
Kindly indicate your acceptance on this offer under the conditions stipulated by signing and returning a copy of this letter.
Yours sincerely,
Sgd 29/09/2014
Professor F. S. Idachaba, NNOM, D. Sc. (Honoris Causa), OFR Chairman, Governing Board of the Nigerian National Merit Award (NNMA)
Now with respect to whether the Cross Appellant was properly suspended pending when he would be investigated the learned trial Judge made it clear and I agree with him that an employer has unfettered powers to suspend an employee within the context of his Conditions of Employment. The learned trial Judge also relied on the Nigerian National Merit Award Act Section 4(2)(a) thereof which provides that the Board in relation to an employee thereof shall have power to exercise disciplinary control (including Cross-Appellant) over such employee.
The Cross-Appellant pleaded that much in paragraph 15 of his Statement of Facts as follows:
“15. The Claimant avers that his appointment and conditions of service are regulated by the Public Service Rules as stated in his letter of appointment and indicated in the enabling Act of the NNMA.”
This is a direct acknowledgment that the Appellants have powers to discipline the Cross-Appellant including the power to suspend him. Suspension is not the same as guilt of allegations leveled against the Cross-Appellant.
Suspension of an employee is to ensure that the employer will have opportunity to investigate the allegations against the employee unhindered and without undue interference from the employee being investigated. The suspension is not a dismissal of the employee. It is an instruction to the employee to step aside until it is determined whether he is culpable of allegations against him. Where the employee is cleared he will be recalled to his duties. See BERNARD OJEIFO LONGE VS. FIRST BANK OF NIGERIA PLC (2010) 6 NWLR (PT.1189) 1 AT 35D - 36E per OGUNTADE, JSC, who said: “In University of Calabar v. Esiaga (1997) 4 NWLR (Pt.502) 719 at 723, the Court of Appeal discussing the nature of the consequences of suspension of an employee reasoned: "The word ‘suspension’ means a temporary privation or deprivation cessation or stoppage of or from the privileges and rights of a person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The 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. 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. This could be because the investigations did not result in any disciplinary conduct.”
Also in Boston Sea Fishing Co. v. Ansell (1986-90) All ER 65 of the Court said: "Mr. Ansell was dismissed and I think his dismissal from the position which he held must be taken to date from the meeting on October, and not from the day in September when he was suspended by the board because suspension is very different from dismissal. When a man is suspended from the office he holds, it is merely a discretion that “so long he holds the office and until he is legally dismissed he must not do anything in the discharge of the duties which under your office you ought to do towards your employer” (italics mine)
I think, with respect, that the Court below completely misunderstood the import of suspension. Admittedly an employer suspending his employee may impose terms of the suspension but in a general sense suspension of an employee from work only means the suspension of the employee from performance of the ordinary duties assigned to him by virtue of his office. Suspension is not a demotion and does not entail a diminution of rank, office or position.
Certainly, it cannot import a diminution of the rights of the employee given to him under the law. To accept as the Court below did that suspension of the plaintiff would deny him the protection afforded him under Section 266 is to confer the right on the defendant to vary the status of the plaintiff without complying with the procedure laid down for doing so. The defendant cannot first suspend the plaintiff without notice to him of the meeting at which the suspension was discussed and agreed and then turn round to say that the suspension had removed the necessity to give him the notice as mandatorily required under Section 266(1) of CAMA. The Court cannot grant to a litigant the right to disobey the law under any artifice or guise.”
At page 77 - 78 ADEKEYE, JSC, said: "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 being 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 the contractual obligations of the parties to each other. See Wallwork v. Fielding (1922) 2 KB Pg.66; Bird v. British Celanese Ltd. (1945) 1 KB Pg.336; University of Calabar v. Esiaga (1999) 4 NWLR (Pt.502) Pg. 719.
It was however held in the case of Amadiume v. Ibok (2006) 6 NWLR (Pt.975) Pg. 158 that the suspension of a servant or an employee when necessary cannot amount to a breach of the servant or employee’s fundamental or common law rights.”
The Cross-Appellant relied on Public Service Rule 030406 to contend that since Exhibit C5 did not mention of any investigation report and thus the suspension is invalid.
The provisions of the said Rule 030406 are:-
“030406 – Suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that he/she should forthwith be prohibited from carrying out his/her duties. Pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary/Head of Extra-Ministerial Office (if within his/her delegated powers) shall forthwith suspend him/her from the exercise of the powers and functions of his/her office and from the enjoyment of his/her emolument.”
The law is settled that in the interpretation of any law, subsidiary legislation, instrument, Legal Rules of Court or other Rules, the Statute or law, the document being construed must be given their ordinary grammatical meanings in order to do justice to the parties involved and to respect the real meaning and the intendment of the makers of the law, instrument or document which calls for interpretation. See PDP VS. HON. (DR.) HARRY N. ORANEZI & ORS. (2018) 7 NWLR (PT.1618) 245 at 257 H to 258A per M. D. MUHAMMAD, JSC.
“Now, a cardinal principle of interpretation we must not forget, which learned appellant’s counsel however seems to ignore, is that provisions of a statute, an instrument or indeed pleadings should not be read in isolation of the other parts of the statute, instrument or pleadings. In order to determine the intendment of the makers of the statute, instrument or pleadings, same should be read as a whole. Thus a clause in any of these must be construed together and with reference to the context and other clauses in the statue, instrument or pleadings in ensuring the discovery of a consistent meaning of the whole, here, the pleading being considered. See Oyeyemi v. Commissioner for Local Government (Kwara State) (1992) 2 SCNJ 266 at 280, (1992) 2 NWLR (Pt.226) 661 and Artra Industry Nigeria Limited v. NBC (1998) 3 SCNJ 97 at 115, (1998) 4 NWLR (Pt.546) 357.”
I am of the solemn view that there is nothing in Rule 030406 suggesting that there must be a report of a Panel or Committee before the Cross-Appellant could be suspended.
There is no magic in the words “prima facie”. It only means “based on what first seems to be true, although it may be proved false later’ according to OXFORD ADVANCED DICTIONARY OF ENGLISH 9TH EDITION PAGE 1219.
The lower Court was right in its conclusion that the suspension was validly invoked against the Cross-Appellant and that reliefs I and II as claimed by the Cross-Appellant were rightly dismissed.
On whether the finding of the learned trial Judge to the effect that the Claimant is not entitled to salary of a category ‘A’ Parastatal on the ground that no evidence of salary he was paid or any circular produced in that behalf was placed before the lower Court, was right. I am of the view that in order for the Cross-Appellant to dislodge the finding of the lower Court, he has a bounden duty to show that he pleaded the salary he was earning in his position and appointment as Secretary to the Nigerian National Merit Award (NNMA). There is no document produced or tendered by the Cross-Appellant to substantiate his allegation that he was not paid his commensurate salaries and emoluments. Exhibit C3 tendered by him specifically appointed him as Secretary of 1st Appellant and not as a Professor in the service of the 1st Appellant to earn the same salary with Chief Executive Officers in what he called category “A” Parastatal.
The Cross-Appellant by various acts and letters went behind its establishment to seek for salary that is higher than the position of Secretary he was appointed without success.
The Cross-Appellant did not even tender his payslip to enable the lower Court have the benefit of his salaries and no document was tendered to prove the elevated salaries the Cross-Appellant arrogated to himself. Parties are bound by the terms and conditions of the employment agreement or contract between them. In this, the Cross-Appellant is bound by the terms and conditions governing his employment. The Court cannot read into any of the documents or correspondences between the parties anything that is not contained in them. The submissions of the Cross-Appellant’s learned Counsel is therefore a veiled invitation to construe documents relating to Cross-Appellant’s employment contrary to the known principles of interpretation of contractual documents. The lower Court was right in not acceding to the absurd demands of the Cross-Appellant in terms of salaries and allowances outside the documents of his employment. This Court will also not be a party to it.
The duty of the Court is to interpret the contract as contained in the instrument made by the parties on their own volition. The Court cannot rewrite the contract between the parties. See:
1. GABRIEL ADEKUNLE OGUNDEPO & ANOR. VS. THOMAS ENIYAN OLUMESAN (2011) 8 NWLR (PT.1278) 54 AT 70 C - D per FABIYI, JSC, who held: "I need to still point out at this stage that it is not the business of a Court to re-write parties contract for them. The duty of the Court is to interpret the contract as contained in the instrument made by the parties on their own free volition. A Court of record should never accede to the importation of unrelated ‘grey’ areas of the law by a party to prop what is not contained in the instrument made by the parties. See Jadesimi v. Egbe (2003) 10 NWLR (Pt.827) 1 at 30; Isiyaku v. Zwingina (2003) 6 NWLR (Pt.817) 560 at 576.”
2. UBN PLC VS. ALHAJI AJABULE & ANOR. (2011) 18 NWLR (PT.1278) 152 AT 185 per ADEKEYE, JSC, who said: "In the law of contract, the law is that a written contract agreement entered into by parties is binding on them. Where there is any disagreement between the parties to such written agreement on any particular point, the only reliable evidence to resolve the claim is the written contract of the parties. The reason being that where the intention of the parties to a contract are clearly expressed in a document, the Court cannot go outside the document in search of other documents not forming part of the intention of the parties.”
3. CBN VS. MRS AGNES M. IGWILLO (2007) 14 NWLR (PT.1054) 393 AT 419 A TO 420 A - C per AKINTAN, JSC, who said: "The law is settled that there are now roughly three categories of contracts of employment, viz: (a) those regarded as purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer and those where the employment is regulated or governed by statute, often referred to as having statutory flavour. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599. An employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. University of Lagos (supra); Ogunke v. National Steel Development Authority (1974) NWLR 128; Fakuade v. OAUTH (1993) 5 NWLR (Pt.291) 47; Ideh v. University of Ilorin (1994) 3 NWLR (Pt.330) 81; Sh*tta-Bey v. The Federal Public Service (Pt.265) 303 and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) 116.”
On page 433A - E, OGBUAGU, JSC, also had this to say: "It must always be borne in mind and this is also settled firstly that where a contract (which includes contract of employment), involves several documents, the trial Court can only determine the issues before it, on the basis of the documents including letters relating to the contract and the conduct of the parties. See the cases of The Attorney-General of Kaduna State v. Atta (1986) 4 NWLR (Pt.38) 785 CA and Leyland (Nig.) Ltd. v. Dizengoff WA (1990) 2 NWLR (Pt.134) 610 at 620.
Secondly, where a contract is in writing, any agreement which seeks to vary the original agreement, must itself, be in writing. This is exactly what happened in the circumstances of this case where the condition of releasing of the respondent to the 1st appellant was that the 1st appellant, shall accept the respondent as employed and transferring his service from one body to another body. See the cases of John Holt d Co. (Liverpool) Ltd. v. Stephen Late (1938) 15 NLR 14 and Bijou (Nig.) Ltd. v. Osidarohwo (1992) 6 NWLR (Pt.249) 643 at 649. Again, a contract which must in law be in writing, can only be varied by an agreement in writing.
See the case of Morris v. Baron & Co. (1918) AC 1 at 39. Also settled, is that in the interpretation of a contract involving several documents, the documents must be read together. See the cases of Royal Exchange Assurance (Nig.) Ltd. & 4 Ors. v. Aswani Textile Industries Ltd. (1991) 2 NWLR (Pt.176) 639 at 669 CA.” (Underlined mine)
It is the duty of the Appellant to prove his case by leading credible evidence in support of his pleaded case. There is no document or contract of employment from which to infer entitlements to the salaries and allowances he claimed.
There is no evidence oral or documentary before the Court to show that the Cross-Appellant who was appointed as Secretary to the 1st Appellant was entitled to be paid salary of a category ‘A’ Parastatal Chief Executive Officer. The claim amounts to gold digging. The lower Court rightly dismissed the claims of Cross-Appellant to such unsubstantiated salaries or allowances.
In respect of issue 3 pertaining to reliefs (iv) (v) and (vi) claiming that it was wrong for the Cross-Respondents to paste query of 16th February, 2016 and seeking letter of apology and sum of N10,000,000 (Ten Million Naira), I agree with the lower Court that the claims are in the form of libel or defamation which is rooted or situated in tort. The Cross-Appellant has not shown any basis for the said claims or reliefs. They were rightly refused by the lower Court.
Consequently, issue 1, 2 and 3 formulated for the determination of the Cross-Appeal are hereby resolved against the Cross-Appellant." Per IGE, JCA.
