IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: JULY 9, 2019
SUIT NO. NICN/LA/526/2016
BETWEEN
Mr Ifechukwude Adigwe- Claimant
AND
FBN Mortgages Limited -Defendant
REPRESENTATION
H. O. Ndubuisi, for the claimant.
J. A. Amusan-Giwa, for the defendant.
JUDGMENT
INTRODUCTION
1. The claimant filed this action on 11th August 2016 vide a complaint, statement of facts, list of witnesses, statements on oath of the witnesses, list of documents and copies of the documents. By the statement of facts, the claimant is praying for the following reliefs:
(a) A declaration that the purported termination of employment of the claimant by the defendant after the claimant has effectively resigned his appointment of same is wrongful, unwarranted, vengeful, mala fide and therefore void and of no effect whatsoever.
(b) A declaration that the placing on hold of the claimant’s salary for upward of 3 (three) months without cause or reasonable justification is wrongful,mala fide, oppressive and a blatant attempt of the defendant to punish, frustrate and ultimately force the claimant out of his employment.
(c) A declaration that the failure or refusal of the defendant to compute and forward to the claimant the claimant’s entitlements as well as outstanding indebtedness to the defendant in spite of repeated requests/demands for same by the claimant is the major reason why the issue of the claimant’s entitlements and indebtedness still lingers.
(d) A declaration that the false and malicious letter written to the claimant’s subsequent employer by the defendant wherein the defendant misrepresented facts and made false and damaging claims against the claimant is the only reason why the claimant lost his subsequent employment and remains unemployed till date.
(e) A declaration that the claimant is entitled to the sum of N4,701,951 (Four Million, Seven Hundred and One Thousand, Nine Hundred and Fifty-One Naira), being the entitlements due to the claimant as a management staff of the defendant upon his resignation on 4th October 2010.
(f) A declaration that the claimant is entitled to 21% p.a. (twenty-one per cent per annum) interest on the total emoluments due to the claimant from the day he resigned until judgment and another 21% p.a. interest until final liquidation of both principal and interest.
(g) A declaration that the claimant is entitled to both general and consequential damages for the embarrassment, humiliation and trauma the several vexatious and vindictive acts of the defendant have caused the claimant and his family.
(h) An order compelling the defendant to pay to the claimant forthwith the sum of N4,701,951 (Four Million, Seven Hundred and One Thousand, Nine Hundred and Fifty-One Naira), being the entitlements due to the claimant as a management staff of the defendant upon his resignation on 4th October 2010.
(i) An order compelling the defendant to pay to the claimant forthwith with 2l% p.a. (twenty-one per cent per annum) interest on the total emoluments due to the claimant from the day he resigned until judgment and another 21% p.a. interest until final liquidation of both principal and interest.
(j) An order compelling the defendant to pay to the claimant forthwith the sum of N10,000,000 (Ten Million Naira) being general and consequential damages for the embarrassment, humiliation and trauma the several vexatious and vindictive acts of the defendant have caused the claimant and his family.
(k) An order that the defendant pays to the claimant the cost of this action.
2. The defendant entered conditional appearance and then filed its statement of defence, list of witness(es), witness statement on oath, list of documents and copies of the documents. At the trial, the claimant testified on his own behalf as CW1 and tendered Exhibits C1 to C36. The second witness listed as CW2 was not called. For the defendant, Bolu Akintade, Human Resources Officer of the defendant, testified as DW for the defendant. The defendant tendered Exhibits D1 to D11. At the close of trial, parties filed and served their respective final written addresses. The defendant’s was filed on 13th March 2019, while the claimant’s was filed and served on 10th April 2019. The defendant did not file any reply on points of law.
THE CASE BEFORE THE COURT
3. The case of the claimant is that he was employed by the defendant as an Assistant Manager vide a letter of appointment dated 23rd November 2005. He discharged his duties diligently and rose through the ranks to Deputy Manager until 4th October 2010 when he resigned his appointment due to increasing unfriendly working conditions and persistent victimization and threats to both the claimant and his family. The claimant’s letter of resignation, submission of staff ID card and handover note dated 4th and 5th October 2010 respectively were duly received and acknowledged by the defendant without question or objection whatsoever (Exhibits C25, C26 and C27).The claimant, upon his resignation, wrote several letters to the defendant requesting for computation of his entitlement vis-à-vis reconciliation of his outstanding loan obligations with the defendant dated 5th October 12 October and 11 November 2010 respectively (Exhibits C28, C29 and C30).The claimant was later to receive a call from the HR department of the defendant (few weeks after he has resigned) informing him that the defendant’s MD/CEO wanted to see him and the claimant promptly honoured the invitation in the hope that the invitation would not be unconnected with his requests for reconciliation of accounts with the defendant.At the meeting with the defendant’s MD, the claimant was asked to explain what he knew about an earlier frosty transactions and the claimant told the MD all that he knew and the MD requested the claimant to put his explanation in writing which the claimant did (as he has done earlier in the year, February 2010 when the matter first came up), referring to Exhibit D4 tendered by the defendant.
4. That notwithstanding the cooperation of the claimant even after leaving the defendant’semployment, all in an attempt to resolve all outstanding issues relating to his entitlement and loan obligations, it became manifestly evident that the defendant had other plans which prompted the claimant to write Exhibit C30 dated 11th November 2010 wherein the claimant, out of frustration, threatened to engage the services of a lawyer in event that the defendant fails to accede to his request within 7 days. That it would appear that the claimant’s letter of 11th November 2010 jolted the defendant which purportedly terminated the appointment of the claimant who resigned over a month before and even the letter purporting to terminate the claimant’s appointment was never brought to the attention of the claimant until 20th January 2011 when the claimant’s solicitor received a letter from the defendant dated 6th January 2011 which included some documents one of which was the letter purportedly terminating the claimant’s appointment. Not done yet, the defendant through its MD/CEO, Mrs Subu Giwa-Amu and HR arrowhead, Mrs Tosin Oluwatimilehin, persisted in their deliberate victimization and witchhunt of the claimant which culminated in the malicious letter (Exhibit C36) written by the defendant to the claimant’s subsequent employer, Pentagon Real Estate Investment Ltd, which made the claimant to lose the job and remains unemployed till date; the main grouse of the claimant and main claim in this suit.
5. To the defendant, the claimant was never a perfect employee as he portrayed and during the course of his employment, several queries were issued to him. That whilst the claimant was in the employment of the defendant, the defendant availed the claimant several staff credit facilities which include:
(i) share loan facility in the sum of N798,600 (Seven Hundred and Ninety Eight Thousand, Six Hundred Naira);
(ii) Car Loan; and
(iii) Mortgage (Building) Loan of N5,850,000.
That the defendant discovered latent improper conduct and unethical actions by the claimant which required the defendant to investigate and the claimant was placed on suspension pending investigation into the allegation leveled against it.That the claimant being fully aware that his action was being investigated elected to resign his appointment to escape disciplinary action but the defendant did not accept his resignation.The defendant accordingly terminated the claimant’s appointment on 11th November 2010. That further to the termination, the defendant computed the claimant’s terminal benefits and net it off against the claimant’s indebtedness to it.
THE SUBMISSIONS OF THE DEFENDANT
6. The defendant submitted two issues for determination, namely:
(1) Has the defendant lost its right to terminate the claimant’s employment upon conclusion of a disciplinary process in compliance with the contract of employment where the defendant (sic) resigns it (sic) employment while the disciplinary process was ongoing?
(2) Assuming, without conceding, that the claimant’s termination was invalid, is the claimant entitled to the consequential reliefs sought?
7. On issue (1), the defendant submitted that the claimant pleaded and led evidence in chief that the documents governing his employment with the defendant are the letter of employment dated 23rd November 2005 (Exhibit C1), Letter of Confirmation dated 30th June 200 (Exhibit C1A), Letter titled New Remuneration Package dated 30th December 2005 (Exhibit C2), Letter titled FY 200/07 Annual Increment (Exhibit C2A), Letter titled New Remuneration Package (Exhibit C2B), FY 2007/08 Promotion Exercise (Exhibit C2C), and FY 2008/2009 Annual Increment (Exhibit C2D). That no other document governing the relationship between the claimant and defendant was pleaded or tendered in evidence.That the defendant by its pleadings did not join issues with the claimant on the documents that form the contract between the parties; ass such, these listed documents are the documents that govern the employment of the claimant with the defendant. That the success or failure of the case of claimant’s case depends on them, citingOmenka v. Morison Industries Plc[2000] 13 NWLR (Pt. 683) 147 at 154. That the Court can only determine if defendant lost its right to terminate the claimant’s appointment upon conclusion of a disciplinary process where the defendant (sic) resigns it (sic) employment while the disciplinary process was on-going based on the contract of service before the Court. Unfortunately, that none of the documents tendered by the claimant can assist the Court to resolve this issue.
8. To the defendant, by its pleadings, it established the following facts which were not denied by the claimant who did not file any reply pleadings to wit:
(i) The defendant states that during the employment of the claimant, particularly during the period the management of the defendant had discovered several patent and latent improper conducts and unethical actions by its members of staff, the defendant, through its then MD/CEO, Mrs Subu Giwa-Amu, inquired into the manner of operation and activities relating TO ONE OF THE Defendant’s project named the “PINEGROVE ESTATE PROJECT” which at that period was being spearheaded by the claimant (para 19).
(ii) Further to the said paragraph 19 and following the inquiries of the management of the defendant, it was discovered that the claimant in connivance and collusion with some other members and non-members of staff of the defendant, took several steps on the project without prior approval of the defendant’s Management and contrary to the defendant’s acceptable procedure and practice of operation for the project (para 20).
(iii) Following paragraphs 19 and 20, the defendant’s management issued several queries to the Mortgage Operation Department, which is the department where the claimant was deployed to during the period in question, relying on the internal Memo dated 20th January2010, February 2,2010, 18th February 2010, February 15, 2010 and 5th March 2010 (para 21).
(iv) Following paragraph 21, the management of the defendant discovered several discrepancies and unethical activities with the handling of the PINEGROVE ESTATE PROJECT and which discoveries directly indicted or touched on the claimant but based on the previous good records of the claimant from the information available to the defendant’s Management as at March 2010, further disciplinary actions against the claimant were declined with only strong warning with both oral and written queries issued on the claimant. Hence, the claimant was given further opportunity to develop his career with the defendant as it was the case with the promotion and redeployment of the claimant in July, 2010 (para 23).
(v) Sometime in October 2010, to the surprise and chagrin of the defendant, the defendant received a complaint letter dated October 18, 2010 from one of its project client/customers (Gaffot Engineering & Construction Ltd) wherein several unethical allegations were levied against the defendant and against the claimant as the project coordinator and spearhead. Based on the letter, the defendant a fresh query on the claimant through an internal memo dated October 19, 2010 to which the claimant responded vide Memo dated October 19, 2010 (para 23).
(vi) Based on paragraph 23 and the response received from the claimant, the defendant’s management commenced several independent and forensic investigations on the complaints received from Gaffot Engineering & Construction Ltd in order to determine the veracity of the complaints and the enquiry commenced after October 19, 2010 and based on the decision of the management of the defendant, the claimant was placed on suspension through a memo dated October 22, 2010 whilst investigation were concluded by the defendant (para 24).
(vii) Following paragraph 24 and based on investigation conclusion of the defendant’s management and upon several considerations, decided to terminate the employment of the claimant with a termination letter dated November 11, 2010 which was delivered to the residence of the claimant due to his absence at the place of work, which absence was in defiance of the defendant’s defectives to the claimant during the period in question(para 25).
9. That during trial the claimant also failed to cross-examine the defendant’s witness on any of the facts presented above. That it follows, therefore, that the fact that the claimant was involved in unethical practice, disciplinary action was on-going at the time the claimant sent his resignation letter stands uncontroverted and this Court is bound to rely on the above sets of fact. That having established that the claimant was aware of the disciplinary action before he made an attempt to resign,the next question is whether he validly resigned in line with the contract of service. Unfortunately, that the only contract of service before the Court is the claimant’s offer letter, and the letter does not set out the mode of resignation or termination.
10. Furthermore, that an examination of the claimant’s purported letter of resignation shows that the claimant did not give the defendant notice; the claimant rather sought to use his outstanding leave, as notice. That the claimant has thus failed to show the Court what part of the contract of employment permits him to so do. That the defendant on its part clearly paid the claimant salary in lieu of notice, referring to the annexure to Exhibit D11 which shows that the claimant was paid salary in lieu of notice. Flowing from this, that it is clear, although both parties have meeting of mind to end their master-servant relationship, that the claimant’s resignation is inherently invalid to end the relationship but the defendant’s termination letter validly put an end to the relationship.
11. The above notwithstanding, that this Court has held in Njoku v. Ecobank Nigeria NCIN/ABJ/193/2012 that it is the law that an employer may reject a letter of resignation on the ground that the employee has questions to answer, and permitting him to go may hinder on-going investigations; referring also toGraham-Douglas v. Att-Gen of Rivers State[1973] NMLR 77. That assuming the Court holds that the claimant’s resignation was valid,then thedefendant would concede that the relationship between the claimant and the defendant had been terminated by the claimant’s letter of resignation as it is trite that a termination after the employment has ceased to exist and so the termination is a futile exercise, referring to“Jombo v. PEFMB[2005] NWLR (Pt. 945) 14443”.
12. However, that the claimant has not shown that it suffered any loss as a result of the subsequent termination. Similarly, that the law is also reasonably and fairly settled that in a claim for wrongful termination of employment, the measure of damages is the entitlement of the claimant in lieu of notice, citingAl-Bishark v. National Productivity Centre and anor[2015] LPELR-24659. Surprisingly, that the claimant did not make any claims on wrongful termination. That assuming the claimant even made the claim, the defendant has proved that it paid the claimant salary in lieu of notice. In that regard, that the claimant’s case would fail; urging the Court to resolve this issue in favour of the defendant.
13. For issue (2), the defendant submitted that the claimant has failed to back up its claim with the relevant provision of the service agreement and as such the claimant’s case is bound to fail. That since the claimant has not shown in his pleading, the existence of any provision of its contract with the defendant that is capable of sustaining his action, the law is that his action fails, citing Morohunfola v. Kwara Tech. [1990] 21 NSCC (Pt. III) 27 at 35; [1990] 4 NWLR (Pt. 145) 506 at 519. Furthermore,that the claimant led no evidence to support his case on the facts and figures for any of the reliefs claimed especially reliefs (h), (i) and (j). That it is trite that he who asserts must prove, citing section 131 of the Evidence Act 2011. To the defendant, the mere averment of pleaded matters without evidence in support and proof, goes to no issue, citingOfomaja v. Comm. for Education [1995] 8 NWLR (Pt. 411) 69. That the claimant failed to lead evidence on the fact that he was entitled to terminal benefit. That it, therefore, follows that the claimant’s relief for terminal benefit and interest thereof shall fail. That where there are no facts set out in the writ or pleading of a party on which a relief or claim can be based, a trial judge cannot make an award on that matter in question, citingKalio v. Daniel-Kalio[1975] 9 NSCC 16 at 19.
14. That assuming the claimant led any such evidence, no such evidence was based on the service agreement between the parties. That the law is also settled that the claimant is not entitled to any claim which is not stipulated in its terms of employment, citingNze v. NPA [1997] 11 NWLR (Pt. 528) 210 at 222. Surprisingly, that the claimant pleaded that its salary was placed on hold for 3 months, and that he was victimized. That the defendant joined issues with him on this issue. That it follows, therefore, that the claimant was bound to adduce credible evidence to prove the said assertion. Unfortunately, that all the facts mentioned by the claimant as victimization, even if admitted, do not amount to victimization. This is because the claimant did not plead any fact in his statement of fact that all other employee were treated differently from him. That until the claimant pleads that he was singled out for cruel or unjust treatment, he has not pleaded victimization.Furthermore, that the defendant had pleaded and the claimant admitted that he was engaged in unethical practices whilst in the defendant’s employment. That it follows that the defendant cannot be held to have victimized the claimant.
15. Additionally, that the claimant pleaded that a negative report was sent to his new employers. That in MTS v. Akinwumi[2009] 16 NWLR 633 at 652, the Court of Appeal held,on the duty of former employer where enquiry is made by intending employer about employee,that it is the moral and social duty of a former employer on enquiry being made by an intending employer as to character, fitness or capacity of such employee or as to the cause of his dismissal to state all that he knows either for or against him, and if he does so honestly and without malice towards him, his answer will be privileged, which is what the claimant did in this case.
16. Lastly, that there is no legal basis for the claimant’s request that the defendant pays him N10,000,000 (Ten Million Naira) as the claimant did not plead or prove that it suffered any loss as a result of the victimization.That the claimant could not proof any psychological trauma, and assuming it proved any, it did not link the trauma to the act of the defendant. The defendant concluded by urging the Court to resolve this issue in favour of the defendant; and dismiss the claimant’s claims.
THE SUBMISSIONS OF THE CLAIMANT
17. The claimant submitted four issues for determination, namely:
(1) Whether the defendant’s purported termination of the claimant’s employment after the claimant has resigned is valid in law.
(2) Whether the claimant has proved that he was serially victimized by the defendant.
(3) Whether the defendant’s letter to the claimant’s subsequent employer was malicious in intent and purpose and if yes, whether the claimant has suffered any loss as a result of the defendant’s malicious act.
(4) Whether the claimant is entitled to both general and consequential damages as claimed.
18. For issue (1), the claimant submitted that labour relations often loosely referred to as master-servant or employer-employee relationships are governed by relevant labour laws and established practices. Therefore, the mode of engagement and disengagement (the power to hire and fire) are guided by defined and established labour laws and principles. That one of such laws is that a labour relationship can come to an end through any one of these three major ways namely: (1) when the employee leaves the job i.e. resignation, (2) when the employer relieves the employee of his job i.e. termination, sack, redundancy, etc, and (3) when the employer summarily terminates the employee’s job i.e. dismissal. That in law, any of these ways of disengagement is sufficient to bring to an end a labour relationship between the employer and employee in any given situation, citingZiideeh v. Rivers State Civil Service Commission[2012] 4 NLR 112.
19. That in the instant case, it is not in contention between the parties that the claimant was in the employment of the defendant for five years (between 2005 – 2010). That what is, however, in contention is how and when the claimant’s employment came to an end. To the claimant, he resigned his appointment on 4th October 2010 and tendered three documents in support of his assertion, namely, Exhibits C25 (letter of resignation), C26 (claimant’s staff ID card) and C27 (handover note), which were received and duly acknowledged by the defendant on 15th October 2010. That on the part of the defendant, it claimed that the claimant’s appointment was terminated on November 2010 and relied on Exhibit D11 in support of her position.That the law is fairly settled that in civil matters, cases are decided on preponderance of evidence before the Court. Therefore, it is the function of the Court to weigh the evidence of both parties on the imaginary scale, citingMagaji & ors v. Odofin & ors [1978] 4 SC 91; [1978] 11 LRN 217, Oshiyemi v. Akinte[1995] 2 NWLR (Pt.379) 555 and Nwike v. Ekwelem[2007] 35 WRN 196.
20. That as at 4th October 2010 when the claimant resigned, there is no shred of evidence (either from the claimant or the defendant) that the claimant ever reported for work after that day. That what is discernible from the evidence and exhibits before the Court is that upon his resignation, the claimant wrote a couple of letters requesting for computation of his entitlement vis-à-vis reconciliation of outstanding loan obligations.The claimant alleged that weeks after he has resigned, he received a call on 19th October 2010 informing him that the MD/CEO of the defendant wanted to see him in her office which the claimant promptly honoured and it was at that meeting that the claimant was informed, for the first time, about a written complaint by one I Gaffot Engineering & Construction Ltd and the claimant was asked to explain what he knew about the complaint and the claimant narrated what he knew in his capacity as the defendant’s project manager at that time.That the defendant’s MD/CEO further requested that the claimant should educe his explanation in writing and the claimant obliged, believing that his cooperation withthe defendant’s MD/CEO will facilitate the speedy resolution of his entitlement and outstanding loan obligations with the defendant.In all this, that the claimant never admitted any wrongdoing or complicity and he never appeared before any committee except the aforesaid one on one meeting with the defendant’s MD/CEO.Most importantly, that the claimant was never told that his appointment was terminated as evidenced by Exhibit C31 dated and received by the defendant on 23rd November 2010 wherein the claimant explained that a letter that was allegedly sent to his house by the defendant has not been delivered to him as at 23rdNovember 2010.That the defendant received this letter (Exhibit C31) from the claimant but never denied or confirmed the allegation of non-receipt of the said letter made by the claimant. Instructively, that the claimant averred in his statement on oath (paragraph 64) that he was never aware of the purported termination of his appointment until 20th January 2011 when the claimant’s solicitor received a parcel from the defendant containing a letter dated 6th January 2011 and accompanied by some documents which strangely contained the purported letter of termination (ExhibitC34).That the defendant did not challenge let alone contradict this positive evidence of the claimant and the implication is that the evidence of the claimant on this point remains unchallenged and must be deemed admitted, citing Umoh v. Tita[1999] 12 NWLR (Pt.631) 427 andObineche & 5 ors v. Akusobi & 6 ors[2010] 4-7 SC (Pt. 2) at 176.
21. The claimant went on that the defendant who claimed that the claimant’s appointment was terminated on 11th November 2010 did not furnish the Court with any verifiable evidence in support of such assertion except the letter written to the claimant’s solicitor on 20th January 2011 which included the said letter of termination. That there is nothing on the part of the defendant before the Court to convince the Court that the purported termination of appointment was even communicated to the claimant by the defendant until the claimant’s solicitor received the letter on 20th January 2011; more than two months after the purported termination. That on the face of it, Exhibit D11 was not signed by the claimant, urging the Court to compare Exhibit D11 with Exhibits D7 and D10 which the claimant duly acknowledged to see the clear difference.
22. That shat is even more intriguing is the allegation of the defendant in her final written address that the claimant quickly resigned while the disciplinary process was ongoing. That this allegation, is unsupported by evidence before the Court. That even the defendant claimed that the complaint (by Gaffot) that allegedly indicted the claimant was dated 18th October 2010, which is two weeks after the claimant resigned on 4th October 2010, referring to paragraph 23 of the defendant’s statement of defence dated 20th March 2017.That this singular admission that the defendant received the complaint on 18th October 2010 effectively rubbished the later claim (in the written address) that the claimant resigned while disciplinary process was on-going because it is impossible for an alleged investigation or disciplinary process, which the defendant claimed commenced on 19th October 2010 to have been on-going when the claimant resigned his appointment on 4th October 2010.
23. Also, that the evidence before the Court (as per Exhibits C25, C26 and C27) clearly shows that the claimant has tendered his resignation letter, submitted his staff ID card and handover note before the defendant allegedly received the complaint. Further to this is the evidence that the claimant was no longer going to work in the defendant’s establishment as at 19th October 2010 which explained why the defendant called the clamant on phone to inform him that the MD/CEO wanted to see him. More interesting is the fact that there is no letter from the defendant rejecting the claimant’s resignation. Consequently, that the claimant’s letter of resignation dated 4th October 2010 having not been rejected by the defendant should be deemed accepted by the same defendant who did nothing other than to receive and acknowledge it.That to worsen the defendant’s already bad case, the written complaint by Gaffot, which allegedly indicted the claimant, was never tendered before the Court as well as the claimant’s written response to the complaint. Also, the report of the disciplinary committee that purportedly found the claimant guilty was also not tendered before the Court. The defendant only tendered Exhibit D7, a memo dated 19th October 2010 directing the claimant to respond in writing same day before 5pm but failed or ‘forgot’ to tender the claimant’s response as well as the committee’s report to enable the Court determine whether or not the complaint or the report actually indicted the claimant and whether the claimant admitted any wrongdoing in his response.That this failure or refusal to tender those important documents, which are clearly in the defendant’s possession, should be seen for what it really is, withholding evidence, and same should be construed against the defendant by virtue of section 167 of the Evidence Act 2011.
24. Worst still, that the defendant’s sole witness contradicted himself under cross-examination when he was shown paragraph 8 of his statement on oath that clearly says that the loans granted to the claimant by the defendant was still running as at 4th October 2010 and was asked that if it was true that the claimant’s appointment was terminated on 11th November 2010, why was the repeated emphasis on 4th October 2010 in paragraph 8 of his statement on oath and the witness kept quiet and did not answer a word because it became clear to him that his oral testimony was in conflict with his written statement on oath that confirmed that the claimant left the defendant’s employment effective from 4th October 2010.That this additional evidence elicited from the defendant’s witness under cross-examination clearly made a mince meat of the defendant’s inconsistent and contradictory assertion that the claimant’s appointment was terminated while overwhelming evidence before the Court shows that the claimant resigned his appointment on 4th October 2010. The claimant referred to Jombo v. PEFMB [2005] 14 NWLR (Pt.945) 443, which held that an employee cannot be dismissed from an employment that had ceased to exist. Therefore, a dismissal coming after the termination of appointment would be futile exercise. The claimant urged the Court to accordingly hold that the claimant having resigned his appointment on 4th October 2010, the master-servant relationship that existed between the defendant and the claimant came to an end as at 4th October 2010 and there was no appointment to terminate on 11th November 2010.Therefore, the purported termination of the claimant’s appointment on 11th November 2010, more than a month after the labour relationship between the parties had come to an end, is invalid and wrongful.
25. On issue (2), as to the claimant being victimized, the claimant submitted that the defendant claimed that the claimant has not proved that he was singled out for cruel or unjust treatment and that until he proves that, he cannot claim to have been victimized. To the claimant, this line of argument is borne out of either ignorance of the law or mischief or both. First, that there is ample evidence before the Court to show that the claimant was at different times singled out for cruel and unjust treatments. For instance, that few weeks after her resumption as the defendant’s MD/CEO, Mrs Subu Giwa-Amu, by a memo dated l8th February 2010 queried the Head, Mortgage Operation on a number of issues bothering on Pinegrove Estate Project. That eventhough the claimant was not the Head of Mortgage Operation and did not, as a matter of official routine, report to the MD/CEO, Mrs Subu Giwa-Amu insisted that the claimant must also answer the query issued to the Head, Mortgage Operation as evidenced by Mrs Subu GiwaAmu’s handwritten note below her signature indicating the claimant’s name, referring to Exhibit D4. That although not directly connected to the query, the claimant obeyed the MD/CEO’s directive and gave a detailed response to the query, explaining what he knew about the matter in his capacity as the defendant’s Project Manager at the end of which the MD/CEO found out that there was no evidence of wrongdoing and the matter was rested.
26. However, that to unduly prejudice the claimant, the MD/CEO, Mrs Subu Giwa-Amu, on 5th March 2010 issued a direct memo to the claimant wherein the MD/CEO gave deadline to the claimant to complete the project not later than 31st March 2010 when the MD/CEO knew or ought to know that completion of projects like that does not lie in the hands of one person but depends on a number of variables like availability of fund for the project, timely release of such fund, capacity and competence of contractors to meet deadlines etc. That in spite of the fact that the claimant tried and met the MD/CEO’ s deadline of 31st March 2010 completion date, it was the same Pinegrove Estate Project ghost that was exhumed in October 2010 after the claimant had resigned to ‘blackmail’ the claimant (when it became obvious that his detractors could not find anything against him). That if this act of deliberate witch hunt is not victimization, he wonders what is, referring to Exhibits D4, D5, D10 and comparing them with Exhibits C11, C12, C13, C14, C15 and C16.
27. Secondly, that the claimant pleaded and tendered documents to the effect that the MD/CEO of the defendant bluntly refused to approve his annual leave requests for 2010 without giving any reason when the same MD/CEO took her own annual leave and equally approved other staff leave requests, referring to Exhibits C20, C21 and C22.Not done, that the claimant who was recommended and actually appointed as Project Manager (as a result of the claimant’s good performance at the skill and competency program facilitated by world renowned KPMG) on 1st July 2010 was later to be placed on another probation for 3 months by the MD/CEO even though the claimant’s appointment was long confirmed on 30th June 2006 after a satisfactory probationary period (Exhibit C1A). that more worrisome is the fact that the letter purporting to place the claimant on probation was dated 26th July 2010 but was not given to the claimant until 6th August 2010. Yet, the letter was backdated to take effect from 1st July 2010, the same day the claimant was appointed the Project Manager. Curious, isn’t it?
28. Thirdly, that the claimant claimed in paragraph 33 of the statement on oath that his salary account was frozen for about three months by the defendant for no just cause and only the claimant was singled out for such cruel and unjust treatment. That this cruel treatment which was not denied by the defendant was one of the many instances of victimization which the claimant listed in his petition to the defendant’s parent company FBN Plc dated 15th and 29th November 2010 respectively and titled: “Case of unjust treatment and victimization” (Exhibits C18 and C19). The claimant then invited the Court to consider whether, in the light of the foregoing plethora of instances, the claimant was fairly or unjustly treated, submitting that the claimant was not only unjustly treated but was serially victimized, harassed, intimidated and traumatized by the unjust acts of the defendant.
29. Issue (3) is whether the defendant’s letter to the claimant’s subsequent employer was malicious in intent and purpose; and if yes, whether the claimant has suffered any loss as a result of the defendant’s malicious act. To the claimant, whenever a person’s act or action is actuated by improper or indirect motive and such act affects another person in an adverse or unpleasant way, the Court has always held that the person who so acted, acted maliciously, citingOkonkwo v. Ogbogu[1996] 5 NWLR (Pt. 449) 420 at 434. That in the instant case, the claimant who left the employment of the defendant upon his resignation on 4th October 2010 eventually got another work with a company by name, Pentagon Real Estate Investment Ltd. That in securing the job, the claimant had told his subsequent employer (Pentagon) that he resigned his appointment with the defendant (as his previous employer) and on the basis of that information, the claimant was given the job as Head Marketing (land) with an annual salary of N1,920,000 (One Million, Nine Hundred and Twenty Thousand Naira), referring to Exhibit C35.That the claimant resumed with his subsequent employer immediately and was placed on probation (as usual with most new employees) and had worked with his subsequent employer (Pentagon) up till 29th October 2012 when, in response to previous employer’s reference questionnaire, the defendant, in a move that smacks of vengeful vendetta, wrote a patently false and malicious letter dated 29th October 2012 to the claimant’s subsequent employer wherein the defendant deliberately and maliciously misrepresented facts by claiming that the claimant’s appointment with the defendant was terminated (as against the true position that the claimant resigned his appointment).That the defendant even went further to tell the claimant’s subsequent employer that the claimant was indebted to her and asked the claimant’s subsequent employer to prevail on the claimant to settle his indebtedness with her, referring to Exhibit C36. That this action of the defendant which was done with one goal in mind, to deny the claimant of the opportunity to work elsewhere, actually achieved the defendant’s predetermined but sinister agenda as the claimant consequently lost the job and has remained unemployed till date.
30. To the claimant, Exhibit C36 was alien to established labour practices with respect to previous employer’s reference inquiry. That the usual practice is for a previous employer to fill out the standard previous employer’s reference questionnaire as truthfully as possible and return same to source or on the alternative, decline to fill out the reference questionnaire if she has valid reason to do so (something similar to banks’ current account opening reference forms).Therefore, that the writing of Exhibit C36 by the defendant is clearly unknown to law and was actually actuated by improper and indirect motives, urging the Court to hold that Exhibit C36 was written by the defendant in extreme bad faith and same was malicious in intent and purpose and, therefore, wrongful.
31. Furthermore, that having established that the Exhibit C36 was malicious, the next issue is whether the claimant has suffered any loss or injury to be entitled to damages.That the defendant argued that the claimant did not plead or prove that he suffered any loss as a result of the victimization. That the defendant went further to allege that the claimant could not proof (sic) any psychological trauma and that assuming it proved any, it did not link the trauma to the act of the defendant. To the claimant, this assertion by the defendant is simply fallacious. That the claimant clearly showed both in his pleading and oral testimony before theCourt as well as several documents tendered and admitted by the Court that he suffered and continues to suffer severe emotional and psychological trauma as well as incalculable financial losses.That these acts of the defendant included but not limited to freezing of the claimant’s salary account by the defendant for 3 (three) months without any reasonable justification, refusing to approve the claimant’s annual leave requests on many occasions while at the same time, approving the same leave requests to other staff including the MD/CEO herself without giving any reason for so doing, placing of the claimant on 3 months probationary period in July 2010, nearly five years after the claimant’s appointment was confirmed by the defendant, exhuming the ghost of Pinegrove Estate Project in October 2010 when the same matter has been extensively discussed and concluded in March 2010 by writing the malicious letter to the claimant’s subsequent employer, etc.Therefore, that it is evidently clear that the claimant was serially victimized and traumatized by the acts of the defendant.The second leg of the defendant’s argument is that assuming the claimant has proved that he was traumatized, the claimant did not link the trauma to the act of the defendant.In answer, the claimant submitted that all that the claimant has suffered and continue to suffer are all directly traceable to the wrongful and malicious acts of the defendant.
32. Issue (4) is whether the claimant is entitled to both general and consequential damages as claimed. To the claimant, having established that the claimant’s on-going ordeal is caused by the defendant’s wrongful and malicious acts, the next issue to determine is whether the claimant is entitled to substantial damages against the defendant for the wrongful acts. That in British Airways v. Makanjuola [1993] 8 NWLR (Pt. 311) 276, the Court of Appeal held that where a wrongful termination/dismissal carries with it some stigma on an employee’s character, the employee shall be entitled to substantial damages far beyond the amount the employee would have earned. That in the instant case, the claimant apart from all that he was subjected to during his employment with the defendant finally decided to move on with his life when he resigned his appointment with the defendant. Subsequently, the claimant secured another job with a gross annual salary of nearly Two Million Naira.However, that in a move that was reminiscent of the defendant’s vindictive past, the defendant, instead of filling out a standard previous employer’s reference questionnaire (as convention requires), rather chose to write a malicious letter wherein the defendant cast the claimant in negative light which led to the claimant losing his new job and has remained unemployed till date.Therefore, that it is discernible from the above scenario that the only reason why the claimant lost his subsequent job and has remained unemployed is the stigma which the wrongful and malicious act of the defendant caused and in line with the decision of the court in British Airways v. Makanjuola (supra), he is entitled to substantial damages far beyond the amount he would have earned had the infraction not occurred.
33. That the courts are usually inclined to award substantial damages, if not for any other thing, to register the courts’ disapproval of such defendant’s wrongful acts, citingOdogu v. AGF[1996] 6 NWLR (Pt. 456) 508 at 521, where the Supreme Court held that exemplary damages are usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. Also referred to isEliochim (Nig) Ltd v. Mbadiwe[1986] 1 NWLR (Pt. 14) 47, Mrs Obis v. Nigeria Navy [1999] 1 FHCLR 606; and Okonkwo v. Ogbogu (supra), which held that even where there has been no physical injury, substantial damage may be awarded for the injury to the man’s dignity or for discomfort or inconvenience.In the light of the foregoing argument and decided cases cited above, the claimant urged the Court to hold that the claimant is entitled to exemplary and substantial damages, if not for any other thing, to redress the injustice done to him by the wrongful acts of the defendant.Also, that it is settled law that cost follows event and a successful party is entitled to cost in line with the Latin maxim Ubi jus, ibi rernedium unless there are special reasons depriving him his entitlement and this must be indicated by the judge, referring toAkinbola v. Pcisson Fisko[1991] 1 NWLR (Pt. 167) 270 SCat 278. In conclusion, the claimant urged the Court to grant the prayers he seeks.
34. Like I pointed out earlier, the defendant did not file any reply on points of law.
COURT’S DECISION
35. I carefully considered all the processes filed and the submissions of the parties. I start off with the remark on the defendant’s final written address, which is replete with errors in words and grammar. For instance, it kept talking of the defendant resigning as if the defendant is the claimant in this suit. This fact is even reflected in issue (1) of the defendant as framed.
36. A second remark is that the defendant intuits that because the claimant did not file any reply to its statement of defence, the claimant necessarily admitted the contents of the statement of defence. I only need to ask the defendant, since it did not file any reply on points of law, should the Court take it that all the submissions of the claimant have been thereby agreed with by the defendant? For present purposes, the defendant seems unmindful of the principle of joinder of issues. In Unity Bank Plc v. Bouari [2008] 7 NWLR (Pt.1086) 372 at 406 – 407, His Lordship Ogbuagu, JSC, relying on Akeredolu v. Akinremi (No. 3) (1989) 3 NWLR (Pt. 108) 164, Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254, Umenyi v. Ezeobi (1990) 3 NWLR (Pt. 140) 621 and Obot v. CBN (1993) 8 NWLR (Pt. 310) 140 stated the principle in these words:
The proper function of a reply is to raise in answer to the defence any matter that must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raises issue of fact not arising out of the defence. In other words, a reply is used by a plaintiff to answer new issues raised in the statement of defence such as in cases of confession and avoidance. It is therefore not necessary to file a reply if its only purpose is to deny the allegations of fact made in the statement of defence because of the principle of joinder of issues. Where no counterclaim is filed, a reply is generally unnecessary if it is also to deny allegations in the statement of defence.
After the completion of pleadings, issue is or issues are said to be joined and the cause is ready for hearing. Such a joinder of an issue operates as a denial of every allegation of fact in the pleadings upon which the issue has been joined. In fact, if no reply is filed, all material facts alleged in the statement of defence are put in issue. A reply to merely join issues, is therefore not permissible.
As it is, issues have been joined in this case and the defendant’s contrary argument is hereby discountenanced.
37. The third remark is that the defendant referred to this Court’s decision in Njoku v. Ecobank Nigeria NCIN/ABJ/193/2012 without deeming it fit to send to the Court the certified true copy (CTC) as enjoined by Order 45 Rule 3(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017). And in Major General Kayode Oni (Rtd) & 4 ors v. Governor of Ekiti State & anor unreported Suit No. SC.622/2015, the judgment of which was delivered on 18th January 2019, Her Ladyship Augie, JSCstrongly put the issue thus:
It is an elementary principle, very elementary, that Counsel who want the Court to make use of authorities cited in Court must provide the name of Parties, the year the case was decided, and where the case is reported, name of the Law Report, the year, volume and page must be cited. But if the said case is unreported, Counsel must provide the Court with a certified true copy of the Judgment sought to be relied upon – see Chidoka & anor v. First City Finance Co. Ltd [2013] 5 NWLR (Pt. 1344) 144 and Ugo-Ngadi v. FRN [2018] LPELR-43903(SC)…
The defendant’s failure to send to this Court the CTC of Njoku v. Ecobank Nigeria means that the said case will not be considered in this judgment. I so hold.
38. The claimant was employed as an Assistant Manager by the defendant vide Exhibit C1 dated 23rd November 2005; and placed on a probationary period of six months. By Exhibit C1(a) dated 18th July 2006, the claimant was confirmed having completed the probationary period. In labour relations, confirmation is used in terms of a probationary employment being made permanent i.e. confirmed. See Ihezukwu v. University of Jos [1990] 4 NWLR (Pt. 146) 598 SC, Obafemi Awolowo University v. Onabanjo [1991] 5 NWLR (Pt. 193) 549 CA, University of Jos v. Dr M. C. Ikegwuoha [2013] NSCQR Vol. 53.3 page 330 SC. 258/2005 and Taylek Drugs Company Ltd v. Peter Onankpa [2018] LPELR-45882(CA). So, once confirmed i.e. made permanent, the claimant (as indeed an employee) cannot be subsequently put on another probation in whatever guise as the defendant did vide Exhibit C24/D9 dated 26th July 2010, claiming that this latter probation was in terms of his redeployment as Project Manager (which occurred vide Exhibit C23 dated 1st July 2010). This is an unacceptable labour practice.
39. By Exhibit C25, a memo dated 4th October 2010, the claimant wrote to the defendant intimating it of his resignation in these words:
I write to inform you of the resignation of my appointment with the organization in my bid to pursue other aspirations in like.
Please note that I hereby take my outstanding 2009 and 2010 leave in lieu of notice.
I thank you for the opportunity offered to me to serve.
Exhibit C25 was endorsed received on same 4th October 2010. By Exhibit C26 dated 5th October 2010, the claimant submitted his staff identification (ID) card, and it was endorsed collected on 15/10/10. And by Exhibit C27 dated 5th October 2010, the claimant wrote that sequel to his resignation on 4th October 2010, he is submitting his handover note, and it was endorsed collected on 15/10/2010. What all of this means is that the claimant effectively resigned his employment on 4th October 2010.
40. Now the law is that an employee has an unfettered right to leave an employment when he likes and the employer cannot stop him. The employer cannot even reject the resignation of an employee. To do so approximates to turning the employee’s work to forced labour contrary to section 34(1)(c) of the 1999 Constitution and section 73(1) of the Labour Act. This stance is supported by the ILO Convention Concerning Forced or Compulsory Labour, 1930 (No. 29) otherwise called the Forced Labour Convention. See Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017 and Dr (Mrs) Ebele Felix v. Nigerian Institute of Management unreported Suit No. NICN/LA/321/2014, the judgment of which was delivered on 4th July 2017.
41. In Mr. Beloved Patrick Anokwuru v. Omatek Ventures Plc & anor unreported Suit No. NIC/LA/140/2011 the judgment of which was delivered on 16th March 2016, this Court, relying on Abayomi Adesunbo Adetoro v. Access Bank Plc unreported Suit No. NICN/LA/293/2013, the judgment of which was delivered on 23rd February 2016, held thus:
The basic law, by Yesufu v. Gov. Edo State [2001] 13 NWLR (Pt. 731) 517 SC, 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. It is not in doubt that the defendants received Exhibit C5, the resignation letter of the claimant, on 20/07/2010, the very date the letter itself was written by the claimant. The resignation of the claimant accordingly took effect from 20th July 2010 i.e. with immediate effect as the claimant desired. What is the legal effect of having to resign with immediate effect as the claimant did in the instant case? In WAEC v. Oshionebo [2006] 12 NWLR (Pt. 994) 258 CA, it was held that a notice of resignation is effective not from the date of the letter, or from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent; and that tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer (emphasis is this Court’s)…
41. In the instant case, the claimant had the unfettered right to resign. This he did on 4th October 2010 vide Exhibit C25, which was received on same 4th October 2010. The claimant’s resignation was thus effective on 4th October 2010. I so find and hold. This being so, the defendant had no right whatsoever to treat the claimant’s employment as subsisting. DW under cross-examination, for instance, testified that HR refused to accept the resignation of the claimant and so the claimant was held to still be in employment. There was thus no subsisting employment for the defendant to issue a query on, to investigate on, to issue a suspension on, to discipline on, and to terminate; as the defendant seems to have variously done vide Exhibits C34, D7, D10 and D11. The Supreme Court inJombo v. PEFMB [2005] 14 NWLR (Pt. 945) 443 SC held that it is elementary that an employee cannot be dismissed from an employment that had ceased to exist. Therefore, a dismissal coming after the termination of appointment would be futile exercise. In a number of decisions, this Court applied this position of the law. The cases are:
• Olumide Seye Otusote v. National Union of Hotels and Personal Services Workers unreported Suit No. NICN/LA/126/2014, the judgment of which was delivered on 9th October 2018;
• Engineer Ignatius Ugwoke v. Aeromaritime (Nigeria) Limited unreported Suit No. NICN/LA/482/2013, the judgment of which was delivered on 30th November 2016;
• Olufemi Amodu v. Epesok Paper Mill Limited unreported Suit No. NICN/LA/304/2013, the judgment of which was delivered on 22nd June 2016;
• Dr (Mrs) Ebele Felix v. Nigerian Institute of Management unreported Suit No. NICN/LA/321/2014, the judgment of which was delivered on 4th July 2017;
• Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017; and
• Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014, the judgment of which was delivered on 24th January 2017.
42. Like I pointed out, after 4th October 2010, there was no employment for the defendant to terminate. This means that the purported termination of the claimant’s employment vide Exhibit D11 is a nullity. I so find and hold. Relief (a) succeeds and is hereby granted.
43. In resigning on 4th October 2010 vide Exhibit C25, and confirmed by the claimant himself in Exhibit C27, the claimant resigned with immediate effect. This fact, by WAEC v. Oshionebo [2006] 12 NWLR (Pt. 994) 258 CA, disentitles the claimant to the payment of any benefit; except for earned salary as was the case in Dr Dave Nwabor v. Oilflow Services Limited unreported Suit No. NICN/LA/552/2015, the judgment of which was delivered on 10th July 2017. The claim for entitlements as well as interest cannot thus be entertained. They must fail. Reliefs (c), (e), (f), (h) and (i) accordingly fail and so are hereby dismissed.
44. In relief (b), the claimant seeks fora declaration that the placing on hold of his salary for upward of 3 (three) months without cause or reasonable justification is wrongful, mala fide, oppressive and a blatant attempt of the defendant to punish, frustrate and ultimately force the claimant out of his employment. The relevant pleading to this relief is paragraph 35 of the statement of facts, which states that the claimant avers that the defendant through the MD/CEO instructed the salary account of the claimant be frozen (for no just cause) for upward of 3 months and for which the claimant suffered financial strain thereby making the claimant’s family go hungry. I do not see the relationship between “placing on hold of his salary for upward of 3 (three) months” (relief b) and freezing of salary account (paragraph 35). It does not necessarily follow that freezing of salary account is same with placing salary on hold. By Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed; andthe duty of a claimant, therefore, is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. Relief (b) accordingly fails and is hereby dismissed.
45. Relief (g) seeks fora declaration that the claimant is entitled to both general and consequential damages for the embarrassment, humiliation and trauma the several vexatious and vindictive acts of the defendant have caused the claimant and his family. To the extent that the claimant himself resigned, which resignation is with immediate effect, and he is not making a case for constructive dismissal, the question of claiming for the vindictive acts of the defendant while in the emolument of the defendant does not just arise. Relief (g) must accordingly fail. It fails and so is hereby dismissed.
46. when the claimant left the services of the defendant, he was offered employment as Head Marketing (Land) by Pentagon Real Estate Investment Ltd, which the claimant accepted; both as evidenced by Exhibit C35 dated 22nd August 2012. Exhibit C35, however, required three satisfactory references one of which must be the claimant’s last employer. Exhibit C36 dated 29th October 2012 is the letter of reference that the defendant wrote to the claimant’s new employer. It reads:
We hereby confirm that Adigwe Ifechukwude Sunday was employed on December 27, 2005 and his appointment was terminated from the Bank’s employment on November 11, 2010. He is still indebted to the Bank and as such, we regret to inform you that we are not in a position to complete the previous employer’s reference questionnaire sent to us.
We solicit your assistance in prevailing on him to settle his indebtedness to our bank to enable us provide a reference as requested.
If you require further information, please do not hesitate to contact the undersigned.
In paragraph 69 of the statement of facts, the claimant pleaded that as a result of this reference letter, his new employer terminated his new employment. The supporting deposition to this pleading is paragraph 67 of the claimant’s deposition of 11th August 2016. The defendant did not deny paragraph 69 of the claimant’s statement of facts in terms of its paragraph 1 of the statement of defence. But in paragraph 28, it stated that it admits paragraph 69 of the statement of facts only to the extent that it received a letter dated 29th October 2012 but that it denied every other allegation of facts stated therein and so puts the claimant to the strictest proof of same at the trial. This is a general denial, which is tantamount to an admission. The law is that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, a traverse that the defendant denies a named paragraph of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein, all do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. See Akande v. Adisa & anor [2012] LPELR-7807(SC), El-Tijani v. Saidu [1993] 1 NWLR (Pt. 268) 246; Jacobson Engineering Ltd v. UBA Ltd [1993] 3 NWLR (Pt. 183) 586; Lewis & Peat (NRI) Ltd v. Akhimien [1976] 1 All NLR (Pt. 1) 460; UBA Ltd v. Edet [1993] 4 NWLR (Pt. 287) 288; Ohiari v. Akabeze [1992] 2 NWLR (Pt. 221) 1; LSDPC v. Banire [1992] 5 NWLR (Pt. 243) 620; Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170; Sanusi v. Makinde [1994] 5 NWLR (Pt. 343) 214; Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 and Idaayor v. Tigidam [1995] 7 NWLR (Pt. 377) 359. The defendant’s denial is accordingly no denial at all; if anything, it is an admission that the claimant lost his new employment because of the letter of reference. I so find and hold.
47. What then is the law relating to work references? This Court had in previous cases shown some signposts in this regard. In Ogunbayo Oluwole Michael v. Fidelity Bank Plc & anor unreported Suit No. NICN/LA/350/2013, the judgment of which was delivered on 13th December 2017, the claim for work reference which was unsupported by any pleading was rejected by this Court. In the instant case, the claimant has the necessary pleadings. In Kefre Ekpo Inyang v. Alphabeta Consulting LLP unreported Suit No. NICN/LA/550/2016, the judgment of which was delivered on 4th June 2018, a duty imposed by the employer’s handbook to issue to the employee a certificate of service was upheld as binding on the employer by this Court; and that its breach was remediable by an award for damages.
48. It was actually in Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014, the judgment of which was delivered on 24th January 2016, that more insight in this area of the law was given. The claimant had prayed for an order directing the defendant to give reference of career records on demand to him. The following UK cases were first reviewed and then followed: Spring v. Guardian Assurance [1995] 2 AC 296, Kidd v. Axa Equity & Life Assurance Society Plc & anor [2000] IRLR 301 HC (QBD), TSB Bank Plc v. Harris [2000] IRLR 157,Cox & Cross v. Sun Alliance Life Ltd [2001] IRLR 448 and Bartholomew v. Hackney London Borough and anor [1999] IRLR 246. At paragraphs 42 to 46 of Kelvin Nwaigwe v. Fidelity Bank Plc, I reviewed these foreign cases and other literature and held thus:
I am persuaded by the force of these UK case law authorities that in appropriate cases there is an implied term in contracts of employment imposing duty on the employer to provide work reference in respect of its employee, whether former or existing. The defendant in the instant case is a Bank and hence a financial institution. This means that the defendant has an obligation to give a work reference to, or in respect of, the claimant, which work reference must be true, accurate, fair and not misleading to a future employer…
In this holding, I acknowledged an implied term in contracts of employment imposing a duty on the employer to provide work/employment reference in respect of employees; and the work/employment reference must be true, accurate, fair and not misleading. Anything short of this would result in the employer being liable either in contract or in tort. Thus where the employer does give a reference or issue a testimonial, he must give a true account of the employee’s character; for a careless or false statement may render him liable.
49. Three of the UK cases referred to earlier deserve special elaboration here. In Spring v. Guardian Assurance, the plaintiff was dismissed from office by the defendant (an insurance company and hence a financial institution). He got another job which required a work reference from the defendant. The work reference given by the defendant was not favourable. In consequence, the plaintiff lost the new job and so brought an action against his former employer on several grounds including negligent misstatement, malicious falsehood and breach of contract. The House of Lords held that an employer who gives a reference in respect of a former employee owed that employee a duty to take reasonable care in its preparation and would be liable to him in if he failed to do so and the employee thereby suffered economic damage. In Bartholomew v. Hackney London Borough and anor(supra), the Court of Appeal held that in giving a reference to a former employee, a former employer owes a duty of care to the former employee to provide a reference which is true, accurate and fair; fairness determined by having regard to the whole of the reference and the surrounding context, as a number of discrete statements, though factually accurate in themselves, could nevertheless read as a whole give an unfair or potentially unfair impression to a recipient of the reference.
50. And in Cox & Cross v. Sun Alliance Life Ltd (supra), the Court of Appeal made it clear that the question of whether an employer who provides a reference for a former employee is in breach of the duty to take reasonable care to ensure that the reference is accurate and fair will usually involve making reasonable inquiry into the factual basis of the statements in the reference. Accordingly, a verbal reference by Sun Alliance suggesting that Mr Cox had been suspended pending an investigation into allegations of dishonesty and that he would have been dismissed had he not resigned thus suggesting that his honesty had been in question, despite an agreement between the parties to the effect that a question as to the reason for the termination of Mr Cox’s employment would be answered by saying that Mr Cox had resigned, and that any request for “your impression of the applicant as an employee together with any additional information which you feel may be helpful to us”, would be answered in accordance with an agreed resume of Mr Cox’s career, which agreed resume was favourable and interestingly made no reference to the dispute, was held to be negligence on the part of Sun Alliance and that this negligence had caused Mr Cox’s subsequent employment difficulties.
51. Coming to the case at hand, Exhibit C36 stated that the claimant’s employment was terminated from the Bank. I have declared this to be a nullity. In the eyes of the law it never existed. So the defendant writing that it terminated the employment of the claimant is false in the eyes of the law. This Court has long recognized that the banking sector is sensitive, for which termination with immediate effect (which is what Exhibit D11 purported to do) suggests some wrongdoing and which the employer must justify. See Andrew Monye v. Ecobank Nigeria Plc unreported Suit No. NIC/LA/06/2010, the judgment of which was delivered on 6th October 2011. There is no justification before the Court as to the act of the defendant. In Exhibit C36, the defendant was not ready “to complete the previous employer’s reference questionnaire sent to us” but gleefully wrote Exhibit C36 and urged that the new employer assists it in getting the claimant settled his indebtedness to it. If it is noted that in Exhibits C28, C29 and C30 the claimant was practically begging the defendant to intimate him of his indebtedness to the defendant, then the conclusion must be that the manner Exhibit C36 was couched was nothing but one done in bad faith. I, therefore, agree with the claimant that Exhibit C36 was issued in bad faith. It certainly does not meet the test of being “true, accurate, fair and not misleading to a future employer”; and I so find and hold. Relief (d) accordingly succeeds and so is granted. The claimant is accordingly entitled to damages on this score.
52. The claimant claims N10 Million as damages for general and consequential damages. In Kefre Ekpo Inyang v. Alphabeta Consulting LLP, the claimant had a fixed term employment, and so damages was awarded by this Court by reference to the salary of the fixed term lost. In the instant case, the employment of the claimant is not for a fixed term. At least Exhibit C35 did not state so. Since British Airways v. Makanjuola [1993] 8 NWLR (Pt. 311) 276 gave the bench mark of two years’ salary as damages where the act of the employer stigmatizes the employee, I shall use the same benchmark in awarding damages to the claimant. Exhibit C35 puts the salary of the claimant as N1,920,000 per annum. This sum multiplied by two years gives us N3,840,000. I award this sum against the defendant as damages for the injurious Exhibit C36 it wrote. I so order.
53. On the whole, and for the reasons given, the claimant’s case succeeds in part and only in terms of the following declarations and orders:
(1) It is hereby declared that the purported termination of employment of the claimant by the defendant after the claimant had effectively resigned his appointment of same is wrongful, unwarranted, vengeful, mala fide and, therefore, void and of no effect whatsoever.
(2) It is hereby declared that the work reference of 29th March 2012 issued by the defendant to the claimant’s subsequent employer misrepresented facts and made false and damaging claims against the claimant.
(3) It is ordered that the defendant shall pay to the claimant within 30 days of this judgment the sum of N3,840,000 being damages for the injurious work reference of 29th March 2012.
54. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
