IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
Suit No: NIC/EN/37/2011
Petitioner: SAINT JOSEPH ATSUAH And
Respondent: ZENITH BANK PLC ANOR
Date Delivered: 2017-03-31
Judge(s): HON. JUSTICE AUWAL IBRAHIM
Judgment Delivered
REPRESENTATION: B.A. Iorheghem Esq. appeared for the Claimant. Okenna Agubuzor Esq. appeared for the 1st Defendant. Charles Iwegbue Esq. appeared for the 2nd Defendant.
JUDGMENT On the 28th day of November, 2011 the Claimant filed a Complaint in this Honourable Court which is dated same 28th November, 2011. He subsequently, with leave of court, amended his Statement of Claim dated and filed on 26th day of November, 2014. In paragraph 34 of the Amended Statement of Claim, he claims against the defendants, jointly and severally, the following reliefs: 34. WHEREFORE the Claimant being dissatisfied claims against the Defendants jointly or severally as follows:
(1) Against the 1st Defendant, A DECLARATION that the sudden disengagement of the Claimant from the employment of the 1st Defendant amounts to a breach of the Claimant’s contract of employment.
(2) Against the 1st Defendant, special damages, claimed as follows: a. N872,538.76 (Eight Hundred and Seventy-Two Thousand, Five Hundred and thirty Eight Naira, Seventy-Six kobo only, as particularized in paragraph 24 above). b. N969,332.00 (Nine Hundred and Sixty-Nine Thousand,Three Hundred and Thirty-Two Naira only, Fifty-Eight Kobo) as particularized in paragraph 17 above). TOTAL SPECIAL DAMAGES: N1,841,871.34 (One Million, Eight Hundred and Forty-One Thousand, Eight Hundred and Seventy-One Naira, Thirty-FourKobo) only.
(3) Against the 1st Defendant, the sum of N100,000,000 (One Hundred Million Naira) only as general and aggravated damages representing the pain and frustration brought upon the Claimant for the sudden unlawful termination of job, which made him to develop high blood pressure.
(4) Against 2nd Defendant, the sum of N4,186,278.12 (Four Million, One Hundred and Eighty Six Thousand, Two Hundred and Seventy-Eight Naira, Twelve kobo only, being the Claimant’s total contribution under the pension scheme as at August, 2011.
(5) Against the 2nd Defendant, an order compelling the 2nd Defendant to render an account in such a manner that the Claimant’s share of profit of his total contribution to the pension fund can be calculated and awarded to him based on the proportion of his said total contribution to the entire contributions of the 1st Defendant’s staff to the fund from August, 1999 to August, 2011.
(6) An order awarding to the Claimant any lump sum determined as the profit accruable to him, by virtue of Relief 5 above. ALTERNATIVELY, (1) A DECLARATION that the Claimant having not been duly disengaged as a staff of the 1st Defendant is therefore, entitled to all his salaries and emoluments as any other staff of the 1st Defendant. (2) AN ORDER directing the 1st Defendant to pay to the Claimant all arrears of salaries and other benefits that the Claimant is entitled to, as a staff of the 1st Defendant from the month of September, 2011 till judgment, and thereafter when the Claimant shall formally cease to be its staff. The Complaint was accompanied with a Statement of Claim, list of witnesses, Claimant’s Statement on oath, list and copies of documents to be relied upon at trial. The Amended Statement of Claim was accompanied with an additional Statement on oath of the Claimant. Upon being served the originating processes in this action, the 1st defendant entered appearance on 25th January, 2012 and subsequently filed a Statement of defence dated 11th May, 2012 on 14th May, 2012, with leave of court granted on 15th May, 2012. The claimant thereafter on 28th June, 2012 filed a reply to the 1st defendant’s Statement of Defence, along with a written statement on oath in support of the said reply. Furthermore, with leave of court, the 2nd defendant entered appearance on 26th September, 2012 and later a Statement of Defence dated and filed on 31st July, 2013.
Subsequently, the 1st defendant was allowed to substitute its initially frontloaded witness,firstly, to one Saheed Doyin Olowe, and later to Michael Nwamu, who testified on its behalf. The Statement on oath of the said Michael Nwamu was dated 14thJune, 2015 but filed on 14th January, 2016. The 2nd defendant was also given leave to substitute its initially frontloaded witness to one Sunday Adedoyin who later testified on its behalf. The statement on oath of the said Sunday Adedoyin was dated and filed on 14th March, 2016. The case proceeded to trial. The Claimant gave evidence as CW1 and was cross examined by the learned counsel for the 1st and 2nd Defendants’ respectively. He tendered Exhibits C1 to C8. The 1st defendant also presented its lone witness DW1 who gave evidence by adopting his statement on oath and was cross examined. He also tendered exhibits D1, D2, D3 and D4. The 2nd defendant also called one witness who gave evidence and was cross examined. He tendered one exhibit, Exhibit D5. At the close of the case for each of the parties, the matter was adjourned for final addresses. The 1st defendant filed its final written address dated 2nd May, 2016 on 6th May, 2016. The 2nd defendant filed its final written address dated 4th November, 2016 on 7th November, 2016. The Claimant filed his written address dated 10th November, 2016 on the same date. Thereafter the 1st defendant filed a reply on points of law dated 8th December, 2016 on 13th December, 2016 to the Claimant’s final written address. Learned counsel to the parties adopted their respective final written addresses. In his final written address, the learned counsel for the 1st Defendant formulated and argued the following two issues for determination:
(a) Whether the resignation of the Claimant from the employment of the 1st Defendant constituted a breach of the Claimant’s aforesaid contract of employment’
(b) Whether damages ‘ ‘a legal relief’ can flow from the circumstances of the aforesaid resignation of the claimant from the employment of the 1st defendant’ The 2nd defendant formulated and argued the following issues for the court’s determination: a. Whether the claimant is legally entitled to access the outstanding balance of his retirement savings account after accessing the requisite percentage of same as a result of his loss of employment’ b. Whether the 2nd Defendant acted in accordance with the Pension Reform Act 2004 in all its dealings with the Claimant’ c. Whether the 2nd Defendant is a necessary party in this suit’ The learned Claimant’s counsel in his final written address formulated and argued one issue determination, namely, Whether the claimant has placed before this Honourable Court credible and or material evidence to be entitled to the reliefs sought’ I have carefully considered the processes filed, the evidence led as well as the arguments and submissions of the parties. The issue for determination is whether the Claimant has placed before the Honourable Court credible and or material evidence to be entitled to the reliefs sought’ Before going into the issue for determination let me state briefly the facts of the case. The claimant was employed by the 1st defendant in 1999 as an Executive Assistant. The claimant moved through up the ladder to become a Branch Manager, before his appointment came to an end on the 29th of August, 2011. The Claimant avers that on that 29th August, 2011, his employment was abruptly terminated contrary to the terms and conditions of service as contained in the 1st Defendant’s Employee Handbook.He further averred that he was forced to resign his appointment by the 1st defendant, which alleged that his productivity had declined, hence the decision to disengage him. He pleaded further that he was forced to collect the sum of over seven million naira as his entitlement from the 1st defendant. He equally claims against the 2nd defendant his pension entitlements for the period he worked with the 1st defendant. He therefore brought this action to challenge the wrongful termination of his employment with the 1st defendant.
To the 1st defendant however, the claimant who served it from 1999 was exited on 29th August 2011. That the 1st defendant had planned to reorganize pursuant to which it decided to disengage the claimant. On that 29th August, 2011 the Claimant was invited to the 1st defendant’s Zonal Office in Owerri where a disengagement letter drawn up by the 1st defendant was handed over to him. That the claimant read the said disengagement letter and pleaded to be allowed to voluntarily retire from the 1st defendant. The 1st defendant agreed to reverse the disengagement by allowing the claimant to resign. The 1st defendant averred that the claimant submitted his letter of resignation to the 1st defendant whereupon he was issued a Cheque of N7,120,698.57 as his entitlement/severance package which included amongst others a computation of the Claimant’s pension benefit up to December 2004 and a parting gift of N5,539,500.00. The 1st defendant further averred that the earlier decision to disengage the Claimant from its service was based on his declining productivity. This claimant denied. The 2nd defendant averred that the Claimant maintained a Retirement Savings Account with it pursuant to the provisions of the Pension Reform Act, 2004. It further averred that its obligations to the Claimant under the Pension Reform Act 2004 have been discharged and therefore do not owe him anything more. Turning to the issue for determination, the claimant stated that he has placed before the court credible and material evidence to be entitled to judgment in terms of the reliefs sought against the Defendants. To him the narrow issue is whether the determination of the claimant’s employment with the 1st defendant is hinged on the letter of disengagement dated August 25, 2011 or the letter of resignation dated August 26, 2011. The Claimant further argued that the 1st defendant’s defence that it withdrew the letter of disengagement dated August 25, 2011 has not been supported by any evidence or that it had accepted the voluntary resignation of the claimant. This is contrary to Article 6, paragraph 6-1 of the Defendant’s Employee Handbook which stipulates notice in writing by either party. Furthermore, Article 10 paragraph 10.16 of the Defendant’s Employee Handbook clearly states that an employee who resigns without any notice will not be allowed any leave or salary in lieu as by resigning without notice he will no longer be entitled to the benefits accruing from his employment. However, where he resigns after giving appropriate notice, he will be allowed leave and leave allowance, if due.
The claimant further referred to Exhibit C5 which is the End of Service Statement tied to letter of disengagement and argued that it is in fact against the said Article 10 paragraph 10.16 of the Conditions of employment contained in the Employee Handbook, Exhibit C2. That the appropriate length of notice of resignation was not given by the Claimant and so there is a violation of the terms and conditions of service. He referred to the case of Chief D.A. Eboreime vs Mr B.S. Argumeme(1977) LPELR-FCA/B/13/21/77 Ration 2, per Nnameka-Agu JCA (as he then was) at p. 35 paras A-G. He then urged the court to hold that the purported letter of resignation signed by the Claimant, not being in conformity with the laid down stipulations in the 1st Defendant’s Employee Handbook and also not being accompanied by a corresponding acceptance (in writing) by the 1st Defendant, is void and invalid. Learned Claimant’s counsel submitted further that the purported notice of resignation being a nullity, and the 1st Defendant’s letter of disengagement, having been equally withdrawn by admission of the 1st Defendant, the employment of the Claimant still subsists. That the court is bound to accept and act on credible evidence before it. He referred to the case of Akiboye vs Adeko (2012) All FWLR (Pt. 636) 522 at P.540, para G, and Isiaka vs State (2012) All FWLR (Pt. 645) 381 at p. 396, paras E-F. In relation to the claim of the Claimant against the 2nd Defendant, the claimant submitted that the 2nd defendant did not dispute the claim of the claimant except the fact that the claimant’s pension entitlement is not regulated by the 1st Defendant’s Employee Handbook but by the Pension Reform Act, 2004 and other guidelines, rules and regulations of PENCOM. Learned Claimant’s counsel continued that the only defence of the 2nd defendant is that the Claimant had not reached the age of 50 years to enable him get full payment of the pension entitlement under the Pension Act. That it equally shifted the responsibility for any contribution done prior to 2006 under the 1st Defendant’s Employee handbook to the 1st Defendant. He then urged the court to hold that the 2nd Defendant did not dispute the Claimant’s entitlement under the said pension scheme. On his part, the 1earned counsel for the 1st defendant, in paragraphs 3.02 to paragraph 3.22 of his final written address primarily argued that the claimant voluntarily resigned his employment after being confronted with letter of disengagement and calculated earned service benefits. In paragraph 3.21 of the said final written address learned counsel stated the position as follows: The endorsement of his signature on the aforesaid resignation letter were entirely voluntary and this Honourable Court can make finding and also come to this conclusion from the following pleadings and evidence before you. The Claimant was invited to come to Owerri and on his arrival he was given a letter of his disengagement from the service of the 1st defendant. He went through the letter and thereafter refused to take it or acknowledge it.
He opted according to him to go home and reflect on the development. The 1st defendant maintained that he opted to resign in other (sic) to save his carrier and employment records. Out of his volition, he returned to Owerri on the second day and turned in a letter of resignation. The voluntary return to Owerri on the second day, after reflecting on the developments of the first day led to one result-the resignation letter as the means of exit from the employment of the defendant. The Claimant’s further step of endorsing the collection of the managers Cheque with the same signature thereafter in their striking resemblance is a clear pointer that what transpired earlier was rancor free. In addition to this, learned counsel for the 1st defendant referred to Exhibit C6 tendered by the Claimant which is the letter of resignation dated 26th August, 2011. That the claimant under cross examination admitted endorsing the said Exhibit C6 before his exit from the 1st defendant. The learned counsel further referred to Section 97 of the Evidence Act. 2011 to state that it is not in dispute that the endorsement of Exhibit C6 by the Claimant marked the exit of the Claimant from the 1st defendant bank. Furthermore, learned 1st defendant counsel stated that the Claimant had averred and stated without more in his written statement that it was foisted on him and he was forced to sign it. He argued that the Claimant failed to plead and lead evidence to establish the facts and circumstances on whose strength the court can find that the Claimant was forced to sign the said resignation letter. He cited and relied on Olawepo vs Saraki Ors (2009) 45 WRN 80 at 116, and Osiegbe vs Okoh (2005) 16 NWLR (Pt. 950) 601. Counsel stated further that the use of force must be clearly pleaded and proved as it does not belong to the category of instances that can be presumed, relying on Section 145-168 of the Evidence Act, 2011. He urged the court to find and hold that the claimant had failed to discharge the burden of proof placed on him and they dismiss the suit. He referred to Ephraim Okoli Dim vs Isaac Enemuo (2009) 42 WRN 1 at 25. For the 2nd Respondent, its learned counsel submitted that the relationship between the claimant and the 2nd defendant is one that is governed by the Pension Reform Act, 2004. That the Claimant cannot regulate the relationship alone as section 4 (2) of the Pension Reform Act has provided what the Claimant is entitled to upon retirement. That the claimant is therefore not entitled to any bulk payment after the requisite percentage had been paid to him in this case. He referred to Exhibit D5 which is the Statement of Account of the Claimant’s Retirement Savings Account. He also referred to Ekechi vs Okah (1993) 1 NWLR (Pt. 267) 34 at 47 and Goldmark (Nig) Ltd vs IBAFOM Co. Ltd (2013) All FWLR (Pt. 663) 1830 at p. 1836 Ratio 5. Having considered all the processes as well as the arguments and submissions of counsel the question is that of the resignation of the Claimant from the 1st Defendant’s employment. The Claimant has argued that neither the resignation nor the disengagement should be upheld by the court. That he should be pronounced as still being in the service of the 1st Defendant. However, the Claimant’s contract of employment with the 1st defendant is one of master and servant which means that he cannot be forced upon the unwilling master by the court. Therefore where the Master declares that he no longer wants to work with an employee, what is to be done is to resort to the terms and conditions of the employment relationship in order to invoke same and bring it to an end. In the instant case what seems to be the main contention of the 1st Defendant is that the Claimant had voluntarily retired from its service and that even though he resigned he was eased out of service with a package which he could have taken if he were disengaged against will. Here the onus is on the Claimant to plead and adduce the necessary credible evidence that would prove how he was forced to resign. There are two critical documents tendered before the court. Both have been tendered by the Claimant. These are Exhibits C4 and C6/D3. They are the letters of disengagement and the letter of resignation. While the Claimant wants the court to disregard both letters, the 1st Defendant has maintained that the Claimant when approached to be disengaged, he decided on his own volition to accept the option of resignation. On a balance of probabilities, it seems to me that the Claimant’s case is outweighed by that of the 1st Defendant. The 1st Defendant has stated the facts straight to the effect that the Claimant was approached to be disengaged because the 1st Defendant had noticed reduction in his productivity. However, he asked to be allowed to resign so as not damage his service records in the industry. He was given the option to resign and signed and submitted the letter of resignation to the 1st Defendant. The Claimant has not demonstrated the manner in which the alleged force was used to sign the resignation letter. The exhibit presented of the letter shows it was signed normally and there was not any evidence of struggle or anything to suggest use of force on it. Furthermore, having submitted the letter of retirement the Claimant concluded his exit move from the 1st defendant. This is because by the position of the law, resignation of an employee once submitted becomes effective. It does not have to be acknowledged or responded to by the employer before it becomes effective. This position was clearly stated by this Court in the case of Kelvin Nwaigwe vs Fidelity Bank (2016) (Unreported) Judgment in Suit No. NICN/LA/85/2014 delivered on 24th January, 2016. The court held that: From all this sequence of events, I have no doubt whatsoever that the claimant resigned his appointment with the defendant on 20th December 2013 with immediate effect, which resignation was accepted by the defendant and so is effective; and I so find and hold. All of this is supported by the law. The law is that a notice of resignation of an appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed.
This is because there is absolute power to resign and no discretion to refuse to accept; and it is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted. See Yesufu v. Gov. Edo State [2001] 13 NWLR (Pt. 731) 517 SC, Adefemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1 CA and Abayomi Adesunbo Adetoro v. Access Bank Plc unreported Suit No. NICN/LA/293/2013 the judgment of which was delivered on 23rd February 2016. In fact, Taduggoronno v. Gotom [2002] 4 NWLR (Pt. 757) 453 CA specifically held that no employer can prevent an employee from resigning from its employment to seek greener pastures elsewhere. In the instant case, therefore, it is not open to the defendant for whatsoever reason to refuse to accept the resignation of the claimant for the claimant has an absolute.
