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National Industrial Court

Lawrence Okpako -VS- Global Scansystem Ltd. Globacom Ltd.& ORS

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IN THE NATIONAL INDUSTRIAL COURT

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE:  MONDAY 28TH OCTOBER 2019       SUIT NO.: NICN/LA/761/2016

BETWEEN

LAWRENCE OKPAKO                                       –           CLAIMANT

AND

  1. GLOBACOM LIMITED                                             –           DEFENDANTS
  2. VIXEN ENTERPRISES LIMITED                                   

                                                                                   

 

Representation:

JO Odikpo, with IH Okpe(Mrs) appears for the claimant

KelechiOdoemelam Esq. appears for the defendant

 

JUDGMENT

 

  1. Introduction:

Theclaimant instituted this suit by way of General Form of Complaint dated the 9th day of December, 2016.The claimant amended his Statement of Facts twice before the commencement of trial with the substantive Statement of Facts being that filed on 9th October, 2017 wherein the claimant seeks the following reliefs:

1)   Fifty Five Million Eight hundred and Sixty One Thousand Seven Hundred and Forty four Naira only (55,861,744) the total of outstanding benefits from September 2015 to date.

2)   Damages: N500,000,000 (Five Hundred Million naira) only

3)   Costs.

4)   The Defendants may pay the amount with costs to the claimant or the claimant’s Legal Practitioner within the time allowed for appearance and upon such payment the proceedings shall terminate.

The defendants filed their Statement of Defenceon 31st October, 2017 wherein they counterclaimed as follows:

  1. A DECLARATION that the Defendant to the counter-claim ought to have given the 1stCounter-claimant 30-days’ notice of his intention to resign from its employ in compliance with Clause 12 of the Letter of Offer of Employment or paid 1 month’s salary to the 1st Counter-claimant in lieu of said notice.

  1. AN ORDER compelling the Defendant to the counter-claim to pay to the 1st Counter-claimant the sum of N1, 866,666.67 (One Million Eight Hundred and Sixty-Six Thousand Six Hundred and Sixty-Six Naira Sixty-Seven Kobo) being 1 month’s salary in lieu of the 30-days’ notice of his intention to resign from the 1st Counter-claimant’s employ.

The statement of defence having been filed outside the prescribed time,was regularized on 13th December, 2017.The Claimant’s Reply to the Statement of Defence and defence to the counterclaim along with the claimant’s further statement on oath were filed on 15th November, 2017.Trial commenced on 30th January, 2018 in the course of which the claimant presented 3 witnesses. The claimant testifying personally as CW1,adopted his statement on oath dated 9th December, 2016 and tendered documents which were admitted and marked as exhibits C1 – C14.Joel IfechukwudeNwanze testified as CW2 and adopted his statement on oath of 6th June, 2017; no document was tendered through him.The CW3 was EmenoguPeterclaver who also adopted his statement on oath dated 20th February, 2018 and tendered documents which were admitted and marked exhibits C15 – C19.The defendants opened their case on 23rd October, 2018. Their sole witness, OlufemiKolawoleadopted his statement dated 20th March, 2018; no document was tendered by the DW.  Trial closed on the 20th of March 2018.  The final written address of parties was adopted on the 22nd of October 2019 and the court adjourned for judgment.

2       Facts of the Case:

The claimant was employed by the 1STdefendant through the 2nddefendant company in August 2008 on Level 2 Grade in the sales department.  The claimant rose through the ranks in the 1stdefendant company to level 4 and was seconded as Glo Business Director, Oyo 3 division.  According to the claimant, sometime in September 2015, he received several calls from Senior HR Manager -Mrs. JumokeAduwo, who on the authority of Dr. Mike AdenugaJr (GCON), asked him to resign his position as the company was undergoing some financial difficulties. Initially he resisted but eventually sent in a letter, stating his concerns that he was being forced to resign.  The resignation letter is dated the 29th September 2015.  Claimant states that about 102 staff of the 1stdefendant company was also called upon to resign in an obvious redundancy exercise. Claimant was number 7 on the said list of redundant staff.   Claimant did not receive an acknowledgement of the said letter or any official confirmation that would indicate that the management of the 1stdefendant company accepted his letter of resignation. Claimant was paid his salary in September 2015 and thereafter, he did not hear or receive any other form of payment from the 1st defendant. Claimant went through the clearance processes and was duly cleared by all the departments. Claimant’s terminal benefits/entitlement was however not paid.  By January 2016, Claimant found out that some staff of the 1stdefendant company that were also coerced into resigning their appointment were paid their terminal benefits, Upon enquiring why he did not get such payments after several demands, claimantsaid he was verbally informed that some of the dealers (customers) in his region owed the company and that his payment is being withheld for this reason. The claimant sent a letter of appeal to the 1stdefendant clarifying his position.   A committee was set up by the Head, Human Resources Department, sales, Audit and Legal to look into the matter. Claimantstates that the 1stdefendant also colluded with Sterling Bank PLC (an agency bank substantially owned by Dr. Mike Adenuga Jr. Executive Chairman of the 1st and 2nd  Defendant) to place a freeze on his salary account which is the only bank 1stDefendants and 2nddefendant’s staff  are allowed to use for salary payments.  According to claimant, the Committee met and came out with a report dated the 19th April 2016 sent to Mrs Gladys Talabi, Executive Director, Legal services who is charged with the responsibility to advice and approve payments in Globacom Limited. In that committee report claimant  was described as staff whose employment were terminated and the report further recommended that claimant should be paid his  ‘terminal benefits’ as there was ‘no clear evidence’ to tie him to the dealers debt. However, despite being cleared by the committee set up to address the issue, the 1stdefendant still failed/refused to pay thereby leaving claimant exposed to a lot of hardship.

  1. Defendants however contend that the claimant’s resignation was totally voluntary without any form of influence or duress from any official of the defendants and that the exit of the claimant from 1stdefendant was not as a result of any ‘redundancy exercise’.  The defendants aver that the claimant’s resignation without giving 30-days written notice to the 1stDefendant is in contravention of the claimant’s Letter of Offer of Employment.  The Defendants further deny any knowledge of the list referred to and aver that the said list did not originate from them.  Defendants state that they are not indebted to the claimant in any sum whatsoever.

  1. Arguments of Counsel:

Counsel for defendants, in their final written address formulated the following issues for determination:

 

  1.       Whether the claimant has demonstrated his entitlement to the reliefs he seeks from this Honourable Court.

  1.       Whether having failed to give the 2ndDefendant 30 days’ notice as stipulated in Clause 12, Exhibit C2, the Claimant is not liable to pay to the 2ndDefendant asum equivalent to one-month salary in lieu thereof.

 

  1. On issue one, defendant argues that claimant having made allegations against his employer that he and 101 others were forced to resign; there was a strict burden on him to prove same by cogent and compelling evidence.Defendants refer to the provisions of sections 131, 132 and 136 (1) of the Evidence Act, 2011 and the cases of AlhajiOtaru& Sons Ltd. v. Idris (1999) 6 NWLR (Pt.606) 330 (P. 342 paras. A – B).  They submit that it is not enough for theclaimant to simply allege that his employer persistently demanded his resignation without adducing proof in support thereof such as call records, audio recordings, written memoranda or any other evidence showing the supposed persistent demands for his resignation beyond his mere ipse dixitas contained in exhibits C1, C4 and C8 especially as the allegation has been vehemently refuted by the defendants.  They argue that the claimant’s failure to adduce supporting evidence of his alleged forced resignation is all the more compounded by the fact that the CW1 and CW2, who were essentially called to corroborate the claimant’s evidence, never stated anywhere in their respective statements on oath that they ever saw, heard or otherwise witnessed any official of the defendants demanding the claimant’s resignation.

  1. Addressing the Court as to whether the claimant has demonstrated his entitlement to the reliefs he seeks from this Court, defendants submit that relief one being in the nature of special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved by credible evidence without which no special damages can be awarded. They referred to the case of AlhajiOtaru& Sons Ltd. V..Idris (supra); Garba v. Kur (2003) 11 NWLR (Pt. 831) 280 CA; andOsuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 SC.Defendants further submit that the claimant did not present any credible evidence of its alleged redundancy for the Court’s evaluation; nor did he plead or lead evidence to prove he had any 185 outstanding leave days or any of the other ancillary demands.

 

  1. On reliefs two and three, defendants argue that costs follow events and can only be rightly awarded in favour of a claimant who has proven his case; and that damages can only be awarded where the claimant proves that he has suffered some injury due to an act or omission of the defendant.They relied on the case of Ahmed &Orsv. CBN(2012) LPELR-9341 (SC) (Pp. 17-18, paras. D – A)in support of this principle.  Defendants thensubmit that the claim for costs and damages are unsustainable.
  2. On their issue two, defendants submit that claimants having failed to give the 2nddefendant 30 days’ notice as stipulated in clause 12, exhibit C2, the claimant is liable to pay to the 2ndDefendant asum equivalent to one-month salary in lieu thereof.  They argue that it is one month notice instead of two months because up until his resignation, claimant’s employment had not been confirmed.  They argue that since claimant’s resignation was with immediate effect, by that very fact, he automatically became liable to pay the 2nddefendant the equivalent of a month’s salary in lieu of the 30 days’ notice which he ought to have given the 2nddefendant and which the 2nddefendant has now counterclaimed for.

9.Defendants also urged the Court to dismiss theclaimant’s Reply to the Statement of Defence/Defence to the Counterclaim in view of the fact that the claimant had abandoned it by not leading evidence in its proof, having not  adopted his further witness statement on oath. They relied on the case of Alao v.Akano(2005) 11 NWLR (PT. 935) 160 @ 180 ParaE where Akintan, JSC held as follows:-

The law is settled that where issues are joined on any averments in the pleadings but no evidence is led to support such averment, the result is that such averment in the pleadings is either to be struck out or be dismissed. In other words, such averment could be treated as having been abandoned.

10.Claimants on their part formulated the following three issues for determination:

  1.  Whether the Claimant is entitled to his full claim in this matter as a result of the redundancy exercise carried out by the Defendants.
  2. Whether the Claimant is entitled to exemplary damages as a result of the Defendant’s singular action of calling One hundred and two (102) of its staff to resign without following due process.
  3. Whether the Defendant is entitled to one month salary in lieu of notice from the Claimant in this case in view of the Defendant’s action in issues 1 and 2 above.

  1. 11.On issue one;claimant submits that he is entitled to his full claim and benefit as shown by the pleadings and evidence before this Honorable Court; and that Section 254c (1) (f) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, gives the National Industrial Court jurisdiction over matters relating or connected to unfair labour practices. Claimant refers to the cases of Ezigbo v. Keystone Bank Limited (2016) 66 NLLR (pt 237) 602 NIC. Ogunyale&Ors v..Globacom(2013) 30 NNLR  (pt 85) Pg 51 at 64 ratio 12 and Aero Contractors Co. of Nig Ltd v. National Association of Aircraft Engineers (NAAPE) (2014)  42 NNLR (PT133) 664 NIC.

  1. On issue two, claimant submits that he is entitled to exemplary damages as a result of the defendant’s singular action of calling 102 of its staff to resign at the same period.

  1. 13.on issue three, claimant argues that he has been able to prove that defendant carried out constructive dismissal, a redundancy exercise disguised as a resignation; and that the defendant has a pattern of calling their employees to resign.

  1. In response to claimant’s arguments, defendants intheir  Reply on Points of Law submit that claimant cannot rely on his (further) statement on oath dated 15th November, 2017 having not specifically adopted same in open Court.  They further submit that the Court should not place any weight on exhibit C12, the said exhibit being a doctored/altered document.

DECISION:

 

  1. I have considered the processes filed in this matter, the evidence led and the arguments of counsel.  I adopt the following issues for determination:

  1.             Whether the Claimant has demonstrated his entitlement to the reliefs he seeks.
  2.             Whether the defendants are entitled to their counterclaim.
  3. 16.Before examining and determining the issues set out above, I need to point out that the bedrock, on which the suit lies, is a determination of whether the claimant’s exit from the defendant was based on voluntary resignation or forced resignation pursuant to a redundancy by the defendants.

It is claimant’s case that he was forced to resign his appointment with the defendants pursuant to calls he received and particularly from the Human Resource Manager on the 28/09/2015.  In proof, he relied on exhibit C4 which is the claimant’s resignation letter dated the 29th September 2015 wherein he clearly stated that he was called by a key member of the defendants’ company to resign.  He also relied on the evidence of CW2 that he was also called upon by defendants to resign, and that his name appears as number 8 on a list of those called up to resign.  I have seen the said list where claimant’s name appears as number 7 and CW2 appears as number 8.  Claimant also relied on the evidence of CW3 who testified that he was an employee of the 1stdefendant from August 2008 to August 2012 when he was also called to resign his position and which he did.  CW3 said that he wrote to 1stdefendant asking for a letter of acceptance of his resignation which was given to him.  He was subsequently paid his exit benefits.

It is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both case law and statute support this proposition. See Chairman, EFCC &Anor. v. Littlechild&Anor (2015) LPELR-25199 (CA) &Section 131(1) & (2), Evidence Act, 2011.Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts.  Also, by the principles in Oloruntoba-Oju v. Lawal (2001) FWLR(Pt. 72) 2029 at 2033 and Okomu Oil Palm vs. Iserhienrhien (2001) 5 NSCQR 802, where an employee complains that his employment has been wrongfully terminated, he has the onus to place before the court the terms of the employment and to prove in what manner the said terms were breached by the employer.

In this case, there is evidence that claimant resigned his employment with the defendants (exhibit C4). However, he alleges that it was not voluntaryas he was called up by defendant to so resign.  This fact is expressed on the face of exhibit C4 -the resignation letter.  Defendants deny that they called claimant to resign.  What therefore is the proof that claimant was indeed called to resign? As pointed out by the Defence Counsel:

There is no such evidence as call records, audio recordings, written memoranda or any other evidence showing the supposed persistent demands for his resignation beyond his mere ipse dixit as contained in exhibits C1, C4 and C8 especially as the allegation has been vehemently refuted by the Defendants at paragraph 5 of the Statement of Defence.

 

  1. 17.I agree with the defendants in the above submission; however worrisome is the fact that defendants, from the time they received exhibit C4 alleging that they asked the claimant to resign made no statements in rebuttal; in any form; thus suggestive of admission.  I also note that though the claimant made a great issue of the fact that he was called to resign, defendants’ witness did not rebut this allegation in his evidence.  Though DW stated the voluntariness of the resignation, he did not refute the allegation that the defendants called the claimant to resign.  I find that that act of non-denial is suggestive of admission.  Section 20 of the Evidence Act, 2011 provides that “an admission is a statement, oral or documentary, or CONDUCT which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, mentioned in this Act.”  See Onoba v. Abuja Building Products Ltd &Ors(2014) LPELR-22704(CA).  In the case of Registered Trustees Anacowa Motorcycle Owners & Riders Association &Ors v. NUT Endwell Micro Finance Bank Ltd(2018) LPELR-46749(CA), the Court of Appeal stated on admissions by conduct that:

Exhibit B shows the breakdown of the loan and how the figure of N16,044,052.06 demanded as the outstanding balance as at 22/10/2015, was arrived at. This figure was not challenged by the Appellants. The law is settled and clear that where a Bank makes demands for settlement of debt by letters and the amount of debt is contained in the letter and the debtor does not query the figure written in the letter as the overall debt due but rather writes letters in response explaining the reasons for non-payment of the debt, or refuses to respond at all, the debtor will be deemed to have impliedly admitted the quoted figure as the amount of debt due. See the decision of this Court in NagebuCompany(Nig) Ltdvs Unity Bank Plc(2014) 7 NWLR (PT. 1405) 42, 81 and Karimat Global Trade Links Ltd &Anorvs Unity Bank Plc (2014) LPELR – 23986 (CA) and Intime Connection Ltd vsIchie (2008) LPELR – 8772 AT PAGE 20 PARA D – G. Failure to react to the figure quoted in the demand letter leads to a presumption of admission by conduct. The Appellants must thus be deemed to have admitted their indebtedness to the Respondent as at 22/10/2015 to be N16,044,052.06 quoted in Exhibits B and F in consonance with paragraph 29 of the statement of claim.” Per WAMBAI, J.C.A. (Pp. 22-23, Paras. E-E)

By the same token as found in the above quoted case, it is my opinion that where an employee asserts in his resignation letter that he was called by management to resign, and it is not so, that fact should have been immediately refuted, unless it is the correct position.  By that, I find that, as stated in exhibit C4, and not expressly refuted by defendants, claimant resigned further to management’s instruction.

18.The next important issue is whether the fact of claimant being called to resign proves that it was done pursuant to a redundancy exercise on the part of the defendants.  Claimant alleges that 102 other staffs were called up to resign pursuant to a redundancy exercise.  In proof, he relies on the evidence of CW2 and CW3, exhibit C10 which is a purported list of 1stdefendant’s employee called to resign, exhibit C11- a letter on Airtel headed paper titled AIRTEL NETWORKS LIMITED RESTRUCTURING and exhibit C12 which is a memo conveying minutes of meeting held on the Payment of Terminal benefits to exit staff and the approved memo for the payment of terminal benefits to sales staff whose employments were terminated.

  1. 19.I have considered these pieces of evidence and find that they are inadequate as proof that a redundancy exercise was undertaken by the defendants.  In the first place, the evidence of CW3 cannot be relied on as it relates to an act done in 2012, three clear years before claimant was called up to resign.  With regards to the evidence of CW2, I find that short of the statements in his evidence, there is no proof for the facts he alleges.  Exhibit C10 which is sought to authentic the fact of the termination of the employment of 102 employees by redundancy falls short of establishing this fact.  Thisis because the email to which the list is assumed to be attached to, make no mention or reference to the fact of the resignation or termination of 102 employees or to any list.  We find no link between the list constituting the 102 names and the email.Again, the list has no heading, no description and is neither signed nor dated.  As held in the case of  Kenneth Ojo v. ABT Associates Incorporated &Anor(2014) LPELR-22860(CA);

An unsigned document is a worthless piece of paper. I add that no probative value can be foisted on it; and ought to be discountenanced by the court. See the cases of A.G. Abia State v Agharanya (1999) 6 NWLR (pt. 607) 362 at 371, Faro Bottling Co. Ltd v Osuji (2002) 1 NWLR (Pt. 748) 311 at 330.” Per AKOMOLAFE-WILSON, J.C.A. (Pp. 33-34, paras. E-A)

Likewise, exhibit C11 is an unsigned letter whose authorship is doubtful.  Claimant seeks by it to establish practice in the industry in relation to redundancy.  This document, without more, cannot establish any practice in the industry.  It would however only be put into consideration where it is found that there was a declaration of redundancy by the defendants.  Exhibit C12 also cannot be relied on as it is not accompanied by any of the documents it sought to convey.  The document thus establishes nothing.

I therefore find that the evidence of CW2 and CW3 and exhibits C10, C11 and C12 do not prove the alleged acts of redundancy on the part of the defendants.  Thus, there being no proof of the alleged redundancy,by extension, the act of unfair labour practice alleged by claimant is not proved.  It is quite elementary that no court is allowed to go outside the facts and evidence before it to fish for evidence in order to decide a case before it. In fact all courts are to consider only evidence and issues canvassed before it in trying to reach its judgment.  See the case of Okesoto v. Total Nigeria Plc, (2010) LPELR-4716(CA).

19.Now, to issuewhether the claimant has demonstrated his entitlement to the reliefs he seeks from this Honourable Court.  The claimant seeks three reliefs.  Relief one is for Fifty Five Million Eight hundred and Sixty One Thousand Seven Hundred and Forty four Naira only (55,861,744) the total of outstanding benefits from September 2015 to date.  I have gone through the gamut of claimant’s pleadings and do not find where the constituents of this amount are pleaded.  The claimant just asked for the sum of Fifty Five Million Eight hundred and Sixty One Thousand Seven Hundred and Forty four Naira only (55,861,744) the total of outstanding benefits from September 2015 to date without stating how he arrived at this sum.  The Courts have held that where there is specific pleading of special damages it must be proved by evidence clearly showing how the damages arise. Parties should not presume court will be their calculator or instant computer. Every item of special damage in statement of claim must have clear evidence to support it.  See Daniel Holdings Ltd. v. UBA Plc (2005) 13 NWLR (Pt.943)533.

20.I find that it is only the fact of the amount accruable as notice for termination that the evidence exists.  This amount is not contested, as it is actually the basis of defendant’s counter-claim.  Apart from this (the amount accruable in lieu of notice), I cannot begin to imagine and assume what constitutes the amount sought.  As held in Adegbite v. State, (2017) LPELR-42585(SC)

It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation.”See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaunv. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668.”Per GALINJE, J.S.C. (Pp. 13-14, Paras. C-B

  1. Just like the defendants, I cannot but acknowledge the existence of Exhibit C8, the letter from claimants counsel dated 11th November 2016 to the defendants requesting for payment of claimant’s entitlements.  In that document, counsel, on behalf of claimant demanded for certain heads of payments.  I dare say that the contents of the exhibit C8 do not relieve the claimant of his duty to specifically plead and strictly prove his claim for special damages and does not in any way cure his failure to do so.  Exhibit C8 should be proof of what is pleaded; for evidence without pleadings come to nothing.  See Buhari v. INEC (2008) 4 NWLR (Pt. 1078) 546 at Pp. 622-623, paras. G-C where the Apex Court held that:

The main function of pleading is to focus with much certainty, as far as possible, the various matters actually in dispute between the parties without the pleading of evidence. Therefore, both the courts and the parties are bound by the facts pleaded whilst the facts not pleaded go to no issue. Thus, pleading allows for the just and effectual determination of a suit or claim based on disputed facts. In this case, it is clear that the petitioner did not fully set out facts on which his case was supposedly based, particularly paragraphs 9B, 9(i)(b), 9B(iii)(g) and 9B(iii)(h). What the petitioner did was to plead legal results, arguments, conclusions, inferences and submissions rather than material facts founding their claim. However, what the court did was to expunge the affected parts of the pleadings and allowed the rest to stand, but not to discountenance the paragraphs as argued by the 1st and 2nd respondents. [Sosanya v. Onadeko (2000) 11 NWLR (Pt. 677) 34; Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228] Per Fabiyi, JCA

I find therefore that I am unable to determine claimant’s full entitlement to relief one as presently constituted; except as already found with respect to amount due in lieu of notice.

  1. Assuming however that I am wrong to find that exhibit C8 does not cure the defect of non-pleading of facts constituting the lump sum; I now proceed to consider the details provided in exhibit 8 as making up the entitlement.  With respect to the demand for:
  2. Two months’ salary in lieu of notice N3, 733,333 (N1, 866, 666 X 2),

As already found, parties do not contest the requirement for notice for termination, or salary in lieu.  However, whereas the claimant claims that the length of notice due is 60 days; defendants contend that it is 30days as 60 days is only for confirmed staff.Defendants assert that since no confirmation letter had been issued to the claimant and by exhibit C2 confirmation is not based on a specific time; the claimant remained an unconfirmed staff.  Defendants also argue that from the construction of Clause 12, exhibit C2, for the claimant to be entitled to 2 months’ salary in lieu of notice, 2 conditions must exist simultaneously namely;

  1. The termination of the contract of employment must have been done by the defendants
  2. The claimant’s employment must have been confirmed at the time of the termination.

I have already found that by the tacit admission of defendants, it was the defendants that asked claimant to resign, thus making it tantamount to a termination.  On the non-confirmation of claimant, claimant during cross-examination stated that;

My employment has been confirmed. There is no confirmation letter because Globacom’s practice is not to issue confirmation letter. It is automatic after one year.

In the case of Iwuji v. Federal Commissioner for Establishment 1985 1 NSCC 580 it was held that “where an employee on probation has spent the required probationary period without termination or confirmation, the issue of confirmation of the employee is implied”.  The principle of ‘deemed confirmation’, enunciated in the case of RAJI v. OAU(2014) LPELR-22088(CA) will apply to this case.  See also the cases of ObafemiAwolowo University vs. Dr. Kola Onabanjo (1991) 5 NWLR (Pt.193) 549.  In Rajiv. OAU (supra), the Court held that:

However, the principle of “deemed confirmation of appointment” which was applied by the Court of Appeal in the OAU V. Onabanjo’s case (Supra) is as good now as it was then.

His Lordship, Akpabio JCA supported the leading judgment of his learned brother Mustapha Adebayo Akanbi JCA in the case of OAU V. Dr. Kola Onabanjo (supra) and had this to say at page 570:

“The appellant had delayed unnecessarily in making up their minds whether to terminate or confirm respondent’s probationary appointment. By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of “estoppel by conduct” would operate to prevent the appellant, from alleging and treating him as if he was still on probation. “Delay defeats equity.”

  1. It will be against employment fair play and best practices to accept, as argued by defendant, that the confirmation of claimant is not tied to anytime frame. This would imply that employer can keep an employee in perpetual suspense as to the status of his employment.  That cannot be accepted; especially, in the face of evidence of claimant’s progression, both in rank and in pay, in the defendants company(see exhibit C3, C13).  These, in my view, are evidence of qualitative and quantitative performance, as required in clause 11 of exhibit C2 as basis for confirmation of staff.    I therefore hold, by the authority of the cases cited above, that claimant’s employment is confirmed by implication.  Claimant is therefore found to be entitled to 60 days’ notice of termination.

  1. Claimant further demands (in exhibit C8) for “13 months unpaid salary N24,266,658 (From October 2015 – till date) .  The demand for this sum is apparently founded on the claimant’s assumption that his employment subsists due to the fact that his resignation was not formally accepted by the defendants. Claimant had testified in paragraphs 7 and 8 of exhibit C1 that:

“7.   That I did not receive any acknowledgment of the said letter or any official confirmation that would indicate that the management of the 1stDefendantcompany accepted my letter of resignation…

  1. …,neither was I given an acknowledgment that I was no longer a bonafide staff of the company”

It is trite that resignation of employment is not dependent on its acceptance.  In Sundayv. Olugbenga&Ors(2008) LPELR-4995(CA) the court held that:

It is clear to me that a notice of resignation is effective, not from the date of the letter or from the date of the purported acceptance, but from the date the letter was received by the employer or his agent. Refer to W.A.E.C. v. Oshionebo(2006) 12 NWLR (Pt. 994) 258.

Put bluntly, resignation takes effect from the date notice is received by the employer or its agent. See Adefemi v. Abegunde (supra) at p. 28.

In Benson v. Onitiri (supra), Ademola, OF (as then called) pronounced as follows:-

“Further, it is clear on the authority of Riodan v. The War Office (1959) 3 All E.R 522, 588 that resignation dates from the date notice was received. There is absolute power to resign and no discretion to refuse to accept notice…

The claimant is therefore wrong in his assumption; and is therefore not entitled to the demanded sum.  Apart from the above reason, it is also, in my view, inconsistent for the claimantto demand for salary in lieu of notice of termination and at the same time, demand for his salary from the date of his letter of resignation till date.  The contract can either be already terminated thereby the demand for salary in lieu of notice, or it is not, justifying demand for accrued salaries.  It cannot be both at the same time.  I therefore find that the contract of employment was effectively terminated upon the Claimant’s resignation at the request of the defendants; and that claimant is not entitled to this demand/relief.

  1. Claimant made other ancillary demands in the form of:

13 months driver’s monthly salary at 55,000/month =715,000

13 months Vehicle Maintenance allowance at N50,000/month = 650,000

14 months telephone credit at N15,000/month = N210,000”

The above demands are presumably founded on the 13 months period when claimant assumed his employment to have continued, despite having resigned. Having found that the employment did not continue, I find that claimant is not entitled to this sum.  In any case, claimant did not plead or state how he became entitled to the above sum.  These allowances demanded are not situated or provided for under any of the clauses of Exhibit C2.In the same vein, the demand for his redundancy benefit of one month salary for every year spent in line with industry practice (N14,933,328(N1,866 X 8) is not situated on any evidence showing that claimant is entitled to it.  It has also already been found that defendants’ declaration of redundancy is not proved.  The 185 days for un-utilised leave days – N11,353,425 based on 185/365 days prorated annual salary of N22,400,000.00 suffers the same fate for lack of proof of entitlement to it.

  1. From the above findings on relief one, it is apparent that relief two fails as it is dependent on the success of relief one; especially, as claimant sought for exemplary damages as a result of the defendant’s singular action of “calling 102 of its staff to resign at the same period”, in a clear attempt to circumvent the redundancy processes “thereby throwing 102 of its staff unceremoniously into the labour market”.  Since the fact of the redundancy and the calling out of 102 staffs to resign at the same time is not proved, this relief must fail.  Relief three also fails for lack of proof.

27.What is only proved under relief one is the fact of claimant’s entitlement to two months’ salary in lieu of notice, having been called to resign, and he so resigned with immediate effect.  I therefore hold that claimant is entitled to be paid the sum of N3, 733,333 (that is, N1, 866, 666 X 2) being two months’ salary in lieu of notice having been asked by the defendant to resign his employment.  This shall be paid within 30 days of this judgment, after which interest shall accrue on the said amount at the rate of 20% per annum.  This is pursuant to Order 47 Rule 7 of the Rules of this Court.  While it is settled that a Court of law not being a charitable organization would not grant to a party or to parties reliefs not claimed by them from Court except where such relief is auxiliary or incidental to the main reliefs claimed; “a Court of law may award LESS and not more than what the parties have claimed or pleaded by either party.” Per OHO, J.C.A. in Agu&Anor v. Nwogu&Ors2017) LPELR-42136(CA) .see also Edilcon (Nig) Ltd v. UBA Plc(2017) LPELR-42342(SC).  I find that I can award that part of claimant’s relief which has been proved.

  1. By the finding already made that it was defendants who asked claimant to resign and he so resigned, defendants’ counter-claim fails. In coming to this decision, I discountenanced the claimants Reply to the defendants’ statement of defence and defence to counter-claim, as no evidence was led to prove the averments therein; the claimant having not adopted his additional statement on oathdated 15th November, 2017.  The Reply and defence to counter-claim are deemed to have been abandoned. SeeC. N. Okpala& Sons Ltd v. NB Plc(2017) LPELR-43826(SC), ChukwuemekaAnyafulu&Ors V. MaduegbunaMeka&Ors (2014) LPELR – 22336 (SC); (2014) 7 NWLR (pt. 1406) 396; Adesanya v. Otuewu&Ors(1993) LPELR – 145 (SC), (1993) 1 NWLR (pt.270) 414, AsaniSogunro&Ors. v. AremuYeku&Ors (2017) LPELR-41905 (SC).

 

I make no orders as to cost.

Judgment is entered accordingly.

…………………………………

Hon. Justice Elizabeth A. OJI PhD

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