IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO
DATED: 24TH JUNE, 2019 SUIT NO: NICN/AK/14/2016
BETWEEN
MR. ADEBIYI JAMES ABIMBOLA ……… CLAIMANT
AND
MUTUAL BENEFITS MICRO-FINANCE BANK LTD …….. DEFENDANT
REPRESENTATION:
CHIEF KUNLE IJALANA FOR THE CLAIMANT.
E. I. IHENYEN HOLDING THE BRIEF OF N. OTAH FOR THE DEFENDANT
JUDGMENT
The claimant by a complaint before this court on the 24th May, 2016 claims against the defendant as follows:
A DECLARATION that the letter of resignation of the claimant dated 3rd September, 2016 and received by the defendant on the 3rd day of September, 2016 terminated the Employer/Employee relationship between the claimant and the defendant.
A DECLARATION that the stoppage of the claimant’s remuneration and benefits upon the receipt of the resignation letter amount to the acceptance of the resignation by the defendant.
A DECLARATION that the act of the defendant in frustrating and embarrassing the claimant out of his current employment is unlawful and illegal.
AN ORDER directing the defendant to issue necessary and appropriate documents confirming the resignation of the claimant from the defendant’s employment to his new employer.
AN ORDER OF PERPETUAL INJUNCTION restraining the defendant from doing anything that may affect the relationship between the claimant and his new employer or any other person.
The sum of N5,000,000.00 for psychological and emotional damages suffered by the claimant as a result of the act of commission or omission of the defendant.
The sum of N200,000.00 as the cost of litigation.
The claimant filed along with the complaint all other accompanying processes i.e. the statement of facts, deposition on oath, list of witness and documents to be relied upon while the defendant filed a memorandum of appearance, statement of defence and other accompanying processes.
The claimant’s case is that he was employed by the defendant on the 10th day of October, 2014, resumed duty on the 27th October, 2014 till he resigned his appointment on the 3rd day of September, 2015 and submitted his resignation letter at the Human Resources Department of the defendant the same day. He averred that the resignation letter was not endorsed because the Human Resources Manager of the defendant had travelled out of the country. The HR Manager was however informed and he instructed the officer on duty to collect the said letter and the claimant was told to come back for the acknowledged copy. Whereupon the defendant immediately stopped his salary and other benefits.
Claimant stated that upon resignation, he was told by the defendant to offset the indebtedness of all the customers he was managing, he further stated that he instructed the Staff Cooperative Society of the defendant to credit his account with the defendant with the sum of N25,000.00K being the balance of his contributions in order for the defendant to settle the outstanding of the defendant’s customers he was managing.
The claimant averred that immediately he left the defendant’s employment, he secured an employment with Keystone Bank Plc which requested for the evidence of his resignation from the defendant as a matter of policy. The claimant averred that he contacted the HR Manager of the defendant who promised to release the acknowledged copy of his resignation letter to him, however when he was given a copy, he discovered that the defendant had endorsed same as “received on Jan 29, 2016 by me”{sgd} months after he had submitted the letter, the claimant averred that this act of the defendant portrayed him as a dishonest person, leading to a threat by his new employer to dismiss him.
WHEREOF the claimant claims against the Defendants as aforestated.
The defendant filed its statement of defence on the 17th of January, 2018 and admitted paragraphs 1, 2 and 9 to the extent that the Claimant was an employee of the Defendant. The defendant denied paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the statement of facts as if each and every such allegation of fact were set out and traversed seriatim.
The defendant in response to paragraphs 4 and 11 of the statement of facts, averred that the claimant was employed by Keystone Bank Plc while he was still in the employment of the defendant. The defendant further averred that without any formal notice of resignation or intention to resign, the claimant abandoned the defendant’s customers abruptly and it was only when his letter of resignation from the defendant was requested for by his new employer that the claimant submitted an undated letter of resignation on 29th January, 2016 which was duly acknowledged. The Defendant reiterated that the claimant breached a term of his employment when he failed to give the proper notice before resigning.
The defendant also averred that this suit is grossly incompetent and that this court lacks jurisdiction to entertain same.
Further to the above, the defendant counter-claimed against the claimant as follows:
The total sum of N120,000.00 (One Hundred and Twenty Thousand Naira) being the salary in lieu of notice.
The sum of N350,000.00(Three Hundred and Fifty Thousand Naira) being the solicitors’ fee.
The sum of N100,000.00 (One Hundred Thousand Naira) being the cost of this suit.
The defendant urged the court to dismiss in its entirety the claimant’s suit with substantial cost for being an abuse of court process and uphold the counter-claim.
The Claimant’s Reply to Defendant’s Statement of Defence was filed on the 15th of March, 2018. In his Reply, Claimant denied all the allegations in the statement of Defence, and averred that upon his resignation on 3rd September, 2015, the Defendant immediately stopped the payment of his salary and other allowances. The claimant averred that he did not have any disciplinary issue while in the employment of the defendant and he maintained that he never mismanaged or abandoned any of the defendant’s customers. He added that he suffered psychological and emotional trauma as a result of the action of the defendant. The claimant urged the court to discountenance the counter-claim of the defendant, and dismiss same in its entirety.
Trial commenced in this suit on the 22nd November, 2018 with the claimant testifying on behalf of himself by adopting his witness statement on oath. He tendered several exhibits which were admitted and marked as Exhibits AA1 – AA4 and was cross examined. He thereafter closed his case.
The Defence opened its defence the same day and called, one Sanni Taofeek Sesan as DW1. He adopted his witness Statement on oath and tendered several exhibits which were admitted and marked Exhibits M1 – M3, the witness was also cross examined. The Defence thereafter closed its case, and the case was adjourned for the adoption of final written addresses on the 12th February, 2019.
The Defendant’s counsel adopted his final Written Address dated 12th December, 2018 and filed on 13th December, 2018 at the hearing on the 28th March, 2019, wherein he formulated three (3) issues for determination to wit:
Whether the claimant’s suit as constituted disclosed a cause of action?
Whether the claimant has proved his case to entitle him to judgment?
Whether the defendant is not entitled to the counter-claim?
On issue one, the Nkadi Otah Esq. of counsel to the defendant submitted that a cause of action is a recognized legal claim that a plaintiff pleads or claims in a complaint to start an action. He further submitted that a cause of action is a fact which when proved would entitle a plaintiff to a remedy against a defendant. He cited the cases of CRUTECH v. OBETEN (2012) AFWLR (Pt 641) Pg 1567; Ojo v. Adedeji (2009) 23 WRN pg 67, particularly at 99, lines 40-45.
The counsel submitted that the Claimant’s case is premised on a letter of resignation (Exhibit AA2) which the claimant asserted was “dated” 3rd September, 2015 and submitted same day, this assertion was reiterated in Exhibit AA4, but under cross-examination, he stated that the Claimant failed to proof this assertion, when he admitted that the letter was undated.
The Defence counsel asserted that the Claimant submitted his letter of resignation on 29th January, 2016 and in proof thereof, he tendered Exhibit M1. He submitted that no oral evidence will be allowed to vary the contents of a documentary evidence, stating that the Claimant did not dispute Exhibit M1 and DW1 was not cross examined on the date in dispute. He posited that where a vital evidence on a material fact is not challenged by a party who has the opportunity to so, the court should deem it as admitted and act on it. He cited the case of LATEEF V. FRN (2010) 37 WRN pg 86; and several other cases.
Counsel argued that there is no damage suffered by the claimant from the totality of the facts in this suit, hence there is no cause of action and the claimant is not entitled to the reliefs sought.
On issue two, counsel submitted that the claimant woefully failed to prove his case and cited ARCHIBONG V. ITA (2004) AFWLR (PT 197) PAGE 930 PARTICULARLY AT 951, PARAGRAPH D and S.131 (1) & 132 of the Evidence Act 2011, and that the claimant did not plead any psychological and emotional damages suffered and no evidence of such was adduced at the trial. He therefore urged the court to dismiss this suit in its entirety.
On issue three, defence counsel submitted that a counter-claim is a separate and distinct action from that of the claimant’s, the facts of which flows from the main suit. He cited the cases of Akhigbe v. Paulosa (Nig.) Ltd (2006) 39 WRN 162; Narindex Trust Ltd V. M.I.B. Ltd (2000) 10 NWLR (Pt 721) 321.
The Defendant’s counsel argued that the Claimant in breach of the terms of his employment did not give the Defendant the required notice before his resignation. He pointed out that the claimant admitted this in his evidence and this suffices as proof as facts admitted requires no further proof, he cited the case of N.B.C. Plc v. Ubani (2014) 4 NWLR (Pt 1398) page 421.
In conclusion, learned counsel urged the court to dismiss the Claimant’s suit in its entirety and grant the Defendant’s counter-claim.
Chief Kunle Ijalana of counsel for the claimant adopted his final written address dated 25th February, 2019 and filed on 27th February, 2019 wherein he formulated two issues for determination to wit:
Whether the claimant is entitled to all the reliefs as contained in complaint.
Whether the defendant is entitled to its counter-claims as contained in its counter-claim.
On issue one, Counsel submitted both parties are at liberty to terminate the contractual relationship between them subject to one month’s notice as contained in Exhibit AA1. He also submitted that parties are bound by the terms and conditions of a contract willingly entered into, citing ILOZOR v. AHMADU (2003) FWLR (pt. 163) 132 @ 6, Tsokwa oil Marketing Co. v. B.O.N. Ltd (2002) II NWLR (pt. 777) 200. He asserted that this court is vested with the jurisdiction to entertain this matter. On Exhibit AA2 which the defendant claimed was not dated, he pointed out that in the body of the letter, the claimant stated that the defendant is to be informed of his resignation effective from 7th day of September, the defendant could not therefore have received the said letter later than the 7th of September, 2015. He reiterated that the claimant confirmed his resignation while being cross examined and that it is the subject matter of the correspondence that is to be considered as imperative. It is the law that the proof is on the party who will fail if no evidence is adduced and in his submission, counsel affirmed that this onus has been discharged in this case.
Counsel submitted that there is evidence before the court that all the entitlements payable to the claimant were stopped immediately he submitted Exhibit AA2, and the defendant diverted the contributions of the claimant to settle all debts owed by a customer attached to the claimant, but the claimant in the interest of peace never contested this action. He argued that the defendant/counter claimant cannot therefore ask for a month’s salary in lieu of notice, and urged the court to so hold.
On issue two, counsel submitted that the defendant is not entitled to his counter-claim because it had not suffered any damage whatsoever that would entitle it to same. He further stated that the agreement between the parties herein is to the effect that parties can resile from the contract of employment by a month notice or a month salary in lieu, he argued that the defendant had taken the claimant’s one month salary in lieu of notice and the hardship to which the claimant has been subjected is unwarranted.
Finally, he urged the court to grant the reliefs of the claimant in this suit.
The defendant filed a reply on point of law on 6th March, 2019 which was also adopted along with the final address.
The defendant submitted that a letter of resignation is effective from the date of receipt as there is absolute power to resign and no discretion to refuse to accept the resignation. He cited the case of Sunday v. Olugbenga (2009) 24 WRN 168, particularly at page 176. On the counter-claim defence counsel submitted that it is in itself an action distinct and separate from the main claim of the claimant, which conversely puts the defendant in the position to prove his case like the claimant in the main suit and does not depend on the success or failure of the main suit. It was his submission that the defendant/counter-claimant adduced evidence in proof of the assertions and reliefs sought and this was not debunked by any other evidence. He therefore urged the court to dismiss the claimant’s suit in its entirety and grant the defendant’s counter-claim.
I have read thoroughly the processes filed by both counsel in this suit, listened to the witnesses called and read the submissions of counsel in their final addresses. I have thereafter come up with the following issues that will best determine this suit, to wit;
Whether or not the Claimant has disclosed a cause of action
Whether or not the Claimant is entitled to his claims.
Whether or not the defendant is entitled to its counter-claim.
One issue one, it is the defendant’s contention that the Claimant’s case is premised on a letter of resignation (Exhibit AA2) which he asserted was “dated” 3rd September, 2015 and submitted same day, but the Claimant admitted under cross examination that Exhibit AA2 was not so dated, and that the Claimant in that regard failed to proof his assertion on the date the letter was written and submitted, and that the claimant therefore does not have a cause of action.
A cause of action was defined in the Court of Appeal case of Okonjo v. Omuni [2007] LPELR-8734 (CA) where Shoremi, J.C.A held;
“…..It is therefore settled that a cause of action constitutes a bundle of facts and circumstances giving rise to the plaintiff’s enforcement claims against the defendant. The facts and circumstances have to be as pleaded in the statement of claim. See Ibrahim v. Osim [1987] 4 NWLR (pt.67) 965. And so, it has to be ascertained by having recourse to the statement of claim. As can be seen from the definition, the proposition resolves into two crucial factors thus the defendant’s wrongful act and the consequential damage to the plaintiff. These two factors must co-exist to constitute a cause of action before the court. It does not take account of whether the cause of action will succeed or fail. A cause of action is valid irrespective of the strength or weakness of the plaintiff’s case…”
In the case of The Daily Times of Nigera & Ors v. D.S.V. Limited [2013] LPELR-20370 (CA), The Court of Appeal per Kekere-Ekun, J.C.A held thus;
“cause of action means” means-
A cause of complaint;
A civil right or obligation for determination by a Court of law;
A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine;
Consequent damages;
Every fact which would be necessary for the Plaintiff to prove, if traversed in order to support his right to the judgment of the Court. It does not comprise every piece of evidence that is necessary to be proved ;
All those things necessary to give a right of action whether they are to be done by the Plaintiff or a third person; and
It is factual situation, which enables one person to obtain a remedy from another in Court in respect of injury…”
Flowing from the above, it is clear that the defendant’s contention that the claimant in instituting this suit did not disclose a cause of action is not tenable because from the statement of facts and the evidence at trial, the claimant has been able to establish the alleged failure of the defendant to date the acknowledgment of his letter of resignation with the date he submitted same had put him at risk with his current employer. In the context of a cause of action, the claimant has established the reason why he is in this court i.e the claimant’s suit discloses a cause of action and the jurisdiction of the court is therefore properly invoked to entertain same. I so hold.
I will now go on to treat the reliefs of the claimant to ascertain whether he is entitled to his claims.
Relief 1 is a declaration that the letter of resignation of the Claimant dated 3rd September, 2015 and received by the Defendant on the 3rd day of September, 2015 terminated the Employer/Employee relationship between the Claimant and the Defendant.
It is the contention of the claimant in his evidence that he submitted his resignation letter on the 3rd day of September, 2015, to the defendant but the resignation letter was not endorsed because the Human Resources Manager of the defendant was not available, when the HR Manager was called, he instructed an officer on duty to collect the said letter, while the claimant was told to come back for the acknowledged copy. The defendant thereafter immediately stopped the payment of his salary and other benefits. On demand of his current employer for his resignation letter from his previous employer, the claimant went back for the acknowledged copy of his resignation letter but the acknowledgment was dated 29th January, 2016 instead of 3rd September, 2015 when he submitted the letter, thus painting him in a bad light with his current employer as a dishonest person.
The defendant on the other hand contended that the Claimant submitted his letter of resignation on the 29th of January, 2016 long after leaving the employment of the Defendant.
A perusal of the Exhibits and evaluation of the evidence in this case reveals the following:
The letter of resignation is undated but has 7th of September, 2015 as the effective date of resignation. i.e Exhibit AA2
The resignation of the Claimant took effect from 7th September, 2015 vide Exhibit M2 tendered by the defendant.
That the Claimant left the employment of the Defendant effective 3rd September, 2015 as his salaries and allowances were stopped as of that date.
The defendant acknowledged the resignation letter on the 29th of January, 2016.
The evidence of the claimant is that the undated letter of resignation i.e. Exhibit AA2 was effective from the 7th September, 2015 and his letter of resignation was received by the defendant on the 3rd of September, 2015, but was not acknowledged because the defendant’s HR Manager was not available at the time. It was based on the request of his current employer for a copy of Exhibit AA2 that he went back to collect Exhibit AA2, and he discovered that the date on the acknowledgment differed from the date he submitted the letter, whereupon he demanded for the rectification of the date but the defendant refused, and this placed him in a compromising situation with his current employer.
In Teju Investment and Property Co. Ltd v. Subair [2016] LPELR-40087 (CA) the Court of Appeal per Sankey, J.C.A held thus;
“..it is now firmly settled that documentary evidence is the best evidence. It is the best proof of the contents of such a document, and no oral evidence will be allowed to discredit or contradict the contents thereof, except where fraud is pleaded..”
The Defendant by Exhibit M2 admitted that the Claimant’s resignation took effect on the 7th of September, 2015 and also asserted that it acknowledged Exhibit AA2 on the 29th of January, 2016 because that was the date it was received. The part that needs to be cleared now is, if they received the resignation letter on the 29th of January, 2016, how did they accept that his resignation was effective from the 7th of September, 2015? The only reasonable conclusion is that the claimant indeed submitted his resignation letter on the 3rd of September, 2015effective on the 7th of September, 2015 but the defendant acknowledged the letter on the 29th of January, 2016 when he came back for a copy of it. Paragraph 2 of Exhibit AA2 clearly reads as follows;
“This is to inform you of my intended resignation from the position with effect from Monday 7th September, 2015.”
Exhibit M2 is further proof that this letter was submitted before 7th September, 2015 as the defendant would have indicated in Exhibit M2 if indeed the claimant resigned his appointment with the defendant months after resuming with his new employer. This is further confirmed by the fact that the defendant stopped the claimant’s salary and allowances effective from the date he submitted Exhibit AA2.
I find from the above that the letter of resignation was received by the Defendant on the 3rd day of September, 2015 and terminated the Employer/Employee relationship between the Claimant and the Defendant. This relief therefore succeeds.
Relief two is a declaration that the stoppage of the Claimant’s salary and benefits upon the receipt of the resignation letter amount to the acceptance of the resignation by the Defendant. I have held earlier in this judgment that the letter of resignation was indeed received on the 3rd of September, 2015. The claimant in buttressing this relief tendered his statement of account Exhibit AA3 (a & b) which reveals that indeed the last time his salary was paid by the defendant was 31st of August, 2015 thus it is clear that the defendants did not consider the claimant to be their staff anymore as they did not pay him after the 31st of August, 2015. I find that Exhibit AA3 (a & b) present cogent and compelling evidence from which the court can draw its inference see Teju Investment and Property Co. Ltd v. Subair Supra, this relief therefore succeeds. I so hold.
Relief three is a declaration that the act of the Defendant in frustrating and embarrassing the Claimant out of his current employment is unlawful and illegal.
Under Cross-Examination, CW1 stated:
I am presently working with Keystone Bank as an Internal Control Compliance Officer
I am still with Keystone since 16th of September, 2015 when I resumed with them.
I am still working with Keystone Bank, with or without the letter of the defendant.
The position of the law is that admitted facts need no further proof. See Section 123 of the Evidence Act 2011. See also the case of Ejem & Ors. V. Ofia & Ors. [2000] 7 NWLR (Pt. 666) 662.
It is clear the Claimant is still in the employment of his current employer and the “act of the defendant” has not “frustrated and embarrassed him out of his current employer”. I find therefore that this relief fails. I so hold.
Relief 4 is an order directing the defendant to issue necessary and appropriate document confirming the resignation of the Claimant from the Defendant’s employment to his new employer.
Exhibit M2 was authored by the Defendant, and the content thereof is enough confirmation of the claimant’s resignation. This relief has therefore has been overtaken by events. I so hold.
Relief 5 is an order of perpetual injunction restraining the defendant from doing anything that may affect the relationship between the Claimant and his new employer or any other person.
The Supreme Court in the case of Goldmark Nigeria Limited & Ors v. Ibafon Company Limited & Ors [2012] LPELR-9349 (SC) Per Adekeye, JSC held thus;
“The grant of relief of perpetual injunction is a consequential order which should naturally flow from the declaratory order sought and granted by court. The essence of granting a perpetual injunction on a final determination of the rights of the parties is to prevent permanently the infringement of those rights and to obviate the necessity of bringing multiplicity of suits in respect of every repeated infringement…”
In the instant suit, Exhibit M2 brought an end to whatever form of familiarity the defendant would have with the claimant and his current employer. I find therefore that the grant of perpetual injunction in this situation will be cosmetic as there is no evidence adduced as to any further relationship between the defendant and avenue to antagonise the claimant with his current employer. I find no basis for this relief therefore. I so hold.
Relief 6 is for the sum of ₦5,000,000.00 (Five Million Naira) for psychological and emotional damages suffered by the Claimant as a result of the act of commission or omission of the Defendant.
This relief is a form of special damages. Special damages must be claimed specially and proved strictly. See the case of Aluminium Manufacturing Company of Nigeria Ltd. V. Volkswagen of Nigeria Limited [2010] LPELR-3759 (CA).
There is no cogent evidence before this court in prove of the special damages claimed, the relief therefore fails. I so find and hold.
In Relief 7 the claimant is claiming a sum of ₦200,000.00 (Two Hundred Thousand Naira) as cost of litigation, this I find is at the discretion of the court to be exercised judicially and judiciously, the application is meritorious in this regard. I so find.
In conclusion, the Claims succeeds in part and for the avoidance of doubt, I hereby declare and order as follows:
The letter of resignation received by the Defendant on the 3rd day of September, 2015 terminated the Employer/Employee relationship between the Claimant and the Defendant.
The stoppage of the Claimant’s remuneration and benefits upon the receipt of the resignation letter amounts to the acceptance of the resignation by the defendant.
Reliefs 3, 4, 5 & 6 fails.
A cost of ₦200,000.00 (Two Hundred Thousand Naira) is hereby awarded against the defendant to be paid to the claimant within 30 days, failure of which it will attract 10% interest.
Judgment is accordingly entered.
COUNTER-CLAIM
The defendant counter-claimed against the claimant in this case by seeking the following orders;
The total sum of N120,000.00 (One Hundred and Twenty Thousand Naira) being the salary in lieu of notice.
The sum of N350,000.00 (Three Hundred and Fifty Thousand Naira) being the solicitors’ fee.
The sum of N100,000.00 (One Hundred Thousand Naira) being the cost of this suit.
The claim against the claimant is premised on the fact that the Claimant breached the terms of employment as contained in Exhibit AA1 because he did not give the Defendant the requisite notice before his resignation. In his Written Address N. Otah counsel to the defendant submitted that the claimant admitted this fact in his evidence and as such no further proof is needed on the issue.
Chief Kunle Ijalana of counsel for the claimant in response submitted that the defendant is not entitled to the counter claim because it did not suffer any damage whatsoever that would entitle it to same. Moreover, the claimant’s one month salary was appropriated by the defendant in lieu of one month notice.
A careful perusal of Exhibit AA1 pg 2 paragraph 1 reads:
“Either party can terminate this employment by giving one (1) month written notice or equivalent one month gross salary in lieu of notice during probation period and two months gross salary upon confirmation of appointment.”
Under cross-examination, CW1 stated:
– I did not give the required notice to the Defendant when I resigned
– The reason why I did not give them notice was because my present employer gave me a week to resume and I didn’t have enough time to put in the notice.
– I did not pay the defendant any salary in lieu of notice.
The position of the law is that parties are bound by the terms of their agreement voluntarily and freely agreed upon by them and expressed in written form. See the case of AG Rivers v. AG Akwa Ibom [2011] 8 NWLR (pt.1248) 31. The position of the law is that admitted facts need no further proof. See section 123 of the Evidence Act 2011.
The claimant admitted that he did not give the requisite notice to the defendant before leaving its employment, and the fact that the claimant was on a salary of N720,000.00k (Seven Hundred and Twenty Thousand Naira) per annum, which is ₦60,000 (Sixty Thousand Naira) per month is not in dispute. The claim by the claimant that his August salary and cooperative contributions was diverted by the defendant to pay off the indebtedness of the customers he was managing while he was with the defendant cannot suffice to disprove his failure to give the defendant one month notice or salary in lieu of notice as specified in Exhibit AA1. Thus, this assertion having not being specifically proven and claimed by him is discountenanced.
The defendant is claiming two month salary in lieu of notice in the sum of N120,000.00k (One Hundred and Twenty Thousand Naira), which is in the realm of special damages that must be strictly proofed, I however find no basis for the claim for two month salary in lieu of notice, as the defendant did not adduce any evidence in proof that the claimant was a confirmed staff of the Defendant, so as to activate the two months’ salary in lieu of notice in Exhibit AA1. The section on Probationary period in Exhibit AA1 reads as follows:
“The appointment will be probationary for a period of six months after which confirmation will be subject to an impressive performance and receipt of three (3) satisfactory references. Your references should include your last employer and two character references that are not related to you.”
The defendant have not satisfied the evidential burden in proof of the two months’ salary in lieu of notice based on the above provision i.e. whether the claimant was a confirmed officer or not, and having failed to do this, I hold the claim for two months’ salary in lieu of notice is as such unproven.
It is based on the above reasoning that I find that the claimant is liable to pay the defendant one month’s gross salary in lieu of notice in the sum of ₦60,000.00k (Sixty Thousand Naira Only). I so hold.
Relief b is for the sum of N350,000.00 (Three Hundred and Fifty Thousand Naira) being the solicitors’ fee.
The Supreme Court per Uwaifo, J.S.C in the case of Nwanji v. Coastal Serv. (Nig.) Ltd [2004] 11 NWLR (Pt.885) 552 held thus;
“It is an unusual claim and difficult to accept in this country as things stand today. The issue of damages as an aspect of solicitor’s fees is not one that lends itself support in this country…”
Based on the above cited case, I find that this relief fails. I so hold.
Relief C is for the sum of N100,000.00 (One Hundred Thousand Naira) as cost of this suit. I however find no merit in this relief. It therefore fails.
In all, the defendant’s counter-claim succeeds in part. For the avoidance of doubt, I hereby declare and order as follows;
The Claimant is liable to pay the defendant ₦60,000.00 being one month salary in lieu of notice, payable within 30 days, failure of which it will attract 10% interest.
Relief b fails.
No order as to cost
Judgment is accordingly entered.
Hon. Justice A. A. Adewemimo
Judge
