In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos
On Wednesday, 23rd February, 2022
Suit No: CA/L/495/2014
Before Their Lordships:
Obietonbara Owupele Daniel-Kalio, Muhammad Ibrahim Sirajo, Adebukunola Adeoti Ibironke Banjoko
Between
Globe Motors Holdings Nigeria Limited – Appellant
and
Akinyemi Adegoke Oyewole – Respondent
Citation: (2022) LPELR-56856(CA)
LEADING JUDGMENT DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, J.C.A.
The respondent, who was employed by the Appellant as an Auto Mechanic, was placed on indefinite suspension vide a letter served on him on 11th September 2007. He was neither recalled from the indefinite suspension nor his appointment formally terminated by the Appellant.
The Respondent decided to approach the Citizens’ Mediation Centre of the Lagos State Ministry of Justice with his complaint on 25th October, 2011. The Centre’s invitation to the Appellant was not responded to. The Respondent also sought the legal assistance of the Office of Public Defender where he sent a petition against his indefinite suspension. The Office of Public Defender invited the Managing Director of the Appellant for a meeting but the meeting did not yield any result. This prompted the filing of an action at the National Industrial Court by the Office of Public Defender in which the Respondent as Claimant sought for salary arrears and general damages.
The trial Court found partly in favor of the Respondent and awarded the sum of N554, 190.00 as unpaid salary from 2007 to the date of the judgment.
Dissatisfied with the judgment, the Appellant appealed to the Court of Appeal.
Issues for determination
The Court of Appeal determined the appeal on the following issues:
“a. Whether the learned trial Court was right in ordering the Appellant to pay the judgment sum within 30 days of the trial Court’s judgment contrary to the Appellant’s 90 days provided by statute time to appeal.
b. Whether the issue of the length of time when the Claimant/Respondent was indefinitely suspended should be with pay or without pay was suo motu raised by the learned trial Court and if so whether it is justifiable to have done so without giving the Defendant/Appellant the opportunity to address the Court on the issue before giving judgment based on the issue.”
Appellant’s submissions
On issue 1, learned counsel for the Appellant relying on the authority of ANI VS EFFIOK (2017) 8 NWLR (PT.1567) 281 @ 304 submitted that the order of the trial Court that the judgment sum shall be paid within 30 days amounts to denying the Appellant her constitutional right of appeal. He referred to SECTION 24 (2) OF THE COURT OF APPEAL ACT which provides for a period of three months within which an appeal against a final decision can be lodged at the Court of Appeal and further reiterated that the order of the trial Court directing the payment of the judgment sum within 30 days from the date of judgment is a ploy to deny the Appellant his right of appeal and fair hearing.
On issue 2, Counsel stated that neither the Appellant nor the Respondent raised in their pleadings the issue of whether the Respondent’s indefinite suspension, in view of the length of time, should be with or without pay.
That it was wrong for the lower Court to raise the issue suo motu without affording the parties the opportunity to address the Court on it, as parties and the Court are bound by the pleadings of the parties, citing KUBOR VS. DICKSON (2013) 4 NWLR (PT.1345) 534 @ 586. He contended that the import of SECTION 17 (1) (B) OF THE LABOUR ACT is that the employer shall not be bound to pay wages during the period of suspension where the worker was suspended from work as punishment for breach of discipline or any other offence, as it happened in the instant case, placing reliance on LONGE VS. FB.N. PLC (2010) 6 NWLR (PT.1189) 1.
Appellant’s counsel posited that the trial Court was thus wrong when it held that the suspension of the Respondent without pay is illegal.
Respondent’s submissions
In response to the appellant’s counsel on issue one, the respondent’s counsel submitted that the direction of the lower Court that the judgment sum be paid within 30 days has in no way deprived the Appellant of his constitutional right of appeal in that judgment takes effect on the day it is pronounced and the judgment debt becomes due and payable immediately unless a future date is fixed by the Court.
Relying on the case of COMPTROLLER GENERAL, NIGERIA CUSTOMS SERVICE & ORS VS. MINAJ HOLDINGS LTD (2017) LPELR-43055 (CA), counsel argued that execution of judgment does not foreclose the right of appeal and that a Court has the power to direct in its judgment when the judgment sum shall be paid.
On issue 2, the learned Respondent’s counsel submitted that the issue of whether the Respondent’s indefinite suspension, in view of the length of time, should be with or without pay already existed during the exchange of pleadings in the instant case. He referred to a certain paragraph in the statement of claim as well as the relief claimed by the Respondent to further buttress this point. In addition, counsel stated that the issue was also made an issue for determination in the final addresses of both parties before the trial Court including the Appellant’s reply address on points of law.
That the said issue cannot therefore be said to have been raised suo motu by the trial Court as it was the central issue for determination at the trial Court. He cited the case of ISIYAKU & ANOR VS MUSA & ORS (2019) LPELR-49201 (CA).
Respondent’s counsel contended that the heavy reliance of the Appellant’s counsel on SECTION 17 (1) (B) OF THE LABOUR ACT does not apply to the instant appeal as no provision was made therein for the wages/entitlement of a worker during the period of his suspension.
He submitted that the power of an employer to suspend a worker without pay must stem from the contract of employment of such worker, and in the absence of such term in an employee’s contract of employment, the employer has a statutory duty to continue the payment of wages of such worker during his suspension. He relied on the case of BAMISILE VS. NJC & ORS (2012) LPELR-8381 (CA).
Resolution of issue
The Court on issue 1 stated that an order for payment of judgment sum within a stipulated period is not a barrier to a party’s exercise of his right to appeal against the judgment in which the order was made.
The Court explained that the judgment of a Court of competent jurisdiction takes effect upon delivery or pronouncement, and the winning party is entitled to take the benefit of it straight away, except where it is expressly stayed. That there is nothing wrong in a Court ordering in a monetary judgment that the judgment sum shall be paid within a stipulated period. See ZENITH INTERNATIONAL BANK LTD VS. ALOBU (2016) LPELR-40306.
The Court also referred to the judicial pronouncement of the apex Court in case of OLATUNJI VS. OWENA BANK (PLC) & ANOR (2008) LPELR-2578 (SC) wherein the power of Court to order payment of monetary judgment within a certain time frame at the time of delivering its judgment was clearly preserved.
The Court then held that the order of the trial Court directing the Appellant to pay the judgment sum within 30 days of the judgment appealed against, the lower Court did not interfere with the Appellant’s right of appeal or her right to fair hearing.
On issue 2, the Court explained that from some of the processes filed at the trial Court such as the Respondent’s statement of claim, written adopted evidence, the Appellant’s statement of defence as well as the Appellant’s final Written Address, it cannot be said that the issue of whether the Respondent’s indefinite suspension, in view of the length of time, should be with or without pay was raised suo motu by the trial Court as alleged by the Appellant.
The Court pointed that the parties themselves and their counsel have adequately addressed and argued for and against the said issue before the trial Court handed down its judgment.
The Court then determined the issue of whether the Respondent is entitled to payment of his wages during the period of indefinite suspension.
In resolving the said issue, the Court firstly described suspension as a temporary cessation of employment either pending investigation for an alleged wrong or as a disciplinary procedure for misconduct by the employee. That suspension of an employee from work only means suspension from ordinary duties assigned to him by virtue of his employment or office. See the case of NATIONAL JUDICIAL COUNCIL VS ALADEJANA (2014) LPELR-24134 (CA).
The Court pointed that suspension does not amount to termination or dismissal from the employment. That the contract of employment remains subsisting until it is formally or legally brought to an end by either part.
The Court stated that 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.
The Court explained that since suspension is neither a termination of the employment contract nor a dismissal of the employee, then in effect the employee is still in continuous employment of the employer until he is recalled or formally terminated or dismissed. That 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.
The Court stated that in instant appeal, the letter suspending the Respondent, Exhibit B3, did not state that the Respondent will not be paid salaries. That the letter of employment, Exhibit B1, did not contain any terms with respect to the suspension of the employee without pay. Furthermore, that 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.
The Court pointed that 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 conclusion, the Court stated that the basic and most important right of an employee is the right to his wages and held that 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. See BAMISILE VS. NJC & ORS (2012) LPELR-8381 (CA). Therefore, the Court aligned with the finding of the trial Court that the Appellant is liable to pay the Respondent his salary for the period of suspension.
Decision
The appeal was dismissed for lacking in merit.
APPEARANCES:
GODWIN C. ANYAFULU, ESQ. – For Appellant(s)
VICTORIA ALONGE (MRS.) -For Respondent(s)
Compiled by LawPavilion