CAPT. DIPEOLU AYODEJI OLUDOTUN VS MED-VIEW AIRLINE

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

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

DATE: THURSDAY JUNE 21^ST 2018

SUIT NO. NICN/LA/355/2017

BETWEEN:

CAPT. DIPEOLU AYODEJI OLUDOTUN

CLAIMANT

AND

MED-VIEW AIRLINE PLC

DEFENDANT

Representation:

F E Aghimien appears for the Claimant

Abdullahi Adam Al-Ilory appears for the Defendant.

JUDGMENT

On 27^th of July 2017, the Claimant commenced this suit via the General Form of Complaint and statement of facts (accompanied by list of witnesses, witness statement on oath, list of documents and copies of the documents) and claimed the following reliefs against the Defendant:

A declaration that the letter dated 6^th April, 2017 issued to the Claimant by the Defendant purporting to terminate his appointment “with immediate effect”, is in clear breach of the conditions of his letter of Appointment dated, 10^th September, 2014 and the relevant provisions of the Labour Act, and therefore invalid, null and void.
A declaration that the said wrongful Termination of Appointment “with immediate effect” on the ground that the Claimant allegedly abandoned his duty post without first giving him an opportunity to be heard on the allegation is also a breach of Claimant’s constitutional right of fair hearing the Labour laws and is also null and void and of no effect whatsoever.
A declaration that the said termination of the Claimant’s appointment with immediate effect” amounts to unproven indictment of abandonment of his duty post, which in law is an act of misconduct punishable by dismissal. In other words, I honestly believe that my abrupt disengagement from the Defendant’s services went beyond mere termination of appointment, well into the realm of misconduct, particularly as the Claimant was not given an opportunity to be heard before the dismissal or abrupt end to his appointment.
An interpretation by this Honourable Court that, in law, a Letter of Termination/Dismissal of Appointment issued by an employer takes effect from the date it was issued, while that of the resignation of appointment by an employee takes effect from the date it was received by the employer (Defendant).
A declaration that, in the instant case, the wrongful issue of the letter of termination/Dismissal of appointment took effect from the 6^th day of April, 2017, when the letter was issued, while the purported letter of resignation by the Claimant took effect from the 7^th day of April, 2017 when the letter was received by the Defendant. In effect, the Claimant’s appointment with the Defendant had ceased to exist on 6^th April, before his purported letter of resignation was submitted by him and received by the Defendant/employer. The resignation therefore is of no moment, effect and consequence.
A declaration that as at 7^th of April, 2017 when the Claimant’s purported letter of resignation was received by the Defendant, the Claimant’s appointment had in fact already ceased to exist thereby rendering the Claimant’s appointment and his purported resignation letter to which it relates, of no effect and consequence.
An order of this Honourable Court that from the foregoing, the Claimant is entitled to be compensated in damages for wrongful Dismissal and/or for the abrupt termination of his appointment in the following terms:
General Damages for the sum of N50,000,000.00 (Fifty Million Naira only), for my wrongful dismissal of the Claimant from office and for the specific payment of his arrear of salary of N1,400,000.00 (One Million Four Hundred Thousand Naira only), and allowance of N100,000.00 (One Hundred Thousand Naira Only) for the month of March, 2017.
Or the payment of his monthly salaries and allowances for three months in lieu of Notice of Termination of his appointment for the months of April, May and June at N1,400,000.00 (One Million, Four Hundred Thousand Naira) per month plus N100,000.00 (One Hundred Thousand Naira) allowances per month for three months, amounting to a Total of N5,900,000.00 (Five Million, Nine Hundred Thousand Naira only).

iii. 20% (Twenty percent) interest of the total amount being claimed in sub-paragraphs (i) & (ii) above from the date of the filing of this action to the date of Judgment, and 10% (Ten percent) interest on the Judgment debt until such Judgment debt is fully paid.

An Order of this Hon. Court directing the Defendant to pay back to the Claimant the inexplicable tax deduction from the Claimant’s Salaries notably from September, 2014 to February, 2017, which has no records or evidence of remittance to any Tax Agency.
Similarly, an order of this Hon. Court directing the Defendant to pay back to the Claimant all pension deductions from the Claimant’s salaries before his employment was abruptly brought to an end.
Any other relief this Honourable Court deems fit to make in the circumstances of this case.

In reaction, the Defendant entered formal appearance vide the memorandum of appearance and then filed its statement of defence, list of witnesses, Defendant’s witness statement on oath, list of documents and copies of the documents. The Defendant counter-claimed against the Claimant as follows:

The sum of N10, 522.00 USD (Ten Thousand Five Hundred and Twenty Two Dollars Only) being the sum paid by the Defendant to train the Claimant abroad from 11^th April, 2016 to 1^st May, 2016.
General damages in the sum of N10, 000,000.00 (Ten Million Naira Only) for loss suffered as a result of the Claimant’s aforesaid breach.

iii. Cost of this action in the sum of N1, 000,000.00 (One Million Naira Only).

The Claimant filed a Reply to Statement of Defence and Defence to Counter-Claim on 3^rd October 2017.

At the trial, the Claimant testified on his own behalf as CW, while Joseph Ogundiran, who works with the Defendant as Human Resource/Admin Manger, testified for the Defendant as DW. At the close of trial on 24^th January 2018, the Court ordered parties to file and serve their respective written addresses starting with the Defendant as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. This they did. The Defendant’s final written address is dated 6^th March 2018 and filed on same date, while the Claimant’s is dated 27^th March 2018 and filed on 28^th March 2018. The Defendant’s Reply on Points of Law is dated 18^th April 2018 but filed on 19^th April 2018. Parties adopted their Final Written Addresses on 3^rd May 2018 whereupon the Court adjourned for judgment.

THE CASE OF THE CLAIMANT

The Claimant’s case is that he was employed by the Defendant(an Airline) vide a letter referenced MED/MD/F/23/Vo1.1/296 dated 10^th September, 2014 to the position of Captain (Pilot) in its organization, with effect from 1^st October, 2014. That the Defendant on or about 29^th March, 2017 via flight with flight No, VL/209/LOS-LGW sent him to the United Kingdom (UK) in company of one Captain Stephen Fevrier to train 1^st Officer Anthony Otobo and 2^nd Officers Ayeni, Sawyerr and Oziegbe. That, on his return from the U.K, on the 3^rd of April, 2017, he was bed-ridden with back-ache and food poisoning. That he decided to take a rest as was customary and International Best practice in the service of the Airline worldwide which required a pilot to take at least 2 days to recuperate. That, during that period of recuperation, he received no call from the Defendant to ascertain his state of health or where-about. That the Defendant, on the 6^th of April, 2017 without reasonable cause and, without ascertaining the state of his health and wellbeing issued a letter purporting to terminate his appointment with immediate effect on the ground that he abandoned his duty post. That the Defendant failed or neglected to hear him or issue query to him to state the reasons for his absence (if any) before the Defendant abruptly terminated his appointment contrary to the 2^nd Paragraph of the terms of his appointment and his constitutional right to fair hearing. Claimant alleges that so long as the abrupt termination of his appointment on the ground of an unproven act of abandonment of duty subsists, the action of the Defendant tantamounts to dismissal. That, for his appointment to be lawfully terminated, the Defendant ought to give him three months’ notice as provided for in his contract of employment. That the Defendant’s wrongful termination of his appointment was not issued and could not have been issued on 6^th April, 2017 in anticipation of the receipt of his letter of resignation, which the Defendant itself admitted it received on 7^th April, 2017. That the issue of Service Bond which the Defendant claimed he entered into with the company is not relevant to the complaint raised in his Counsel’s letter of 7^th June, 2017 and ought to be ignored. That the Defendant did not state that his appointment was either terminated in retaliation to his ‘so called’ resignation or his purported failure to comply with the service bond (as if to suggest that in law, two wrongs could make a right, which is not true).

THE CASE OF THE DEFENDAANT

The case of the Defendant is that the Claimant, their employee, was sent on training abroad on the 29^th March, 2017 and was scheduled to return back to duty on the 3^rd April, 2017. That upon the Claimant returning to Nigeria on the 3^rd April, 2017, he never showed up or reported to duty as expected of him. That the Claimant rather than reporting to duty decided to resign his appointment with immediate effect, and posted his resignation letter via DHL Courier service on the 3^rd April, 2017. without giving any prior notice or payment in lieu of a notice to the Defendant. That the Defendant was not aware of the Claimant’s sickness nor was it brought to its knowledge that the Claimant was down-ridden with back-ache and food poison at any point in time. That the Defendant has medical facilities free of charge that takes care of it staff’s medical challenges and gives report to the Defendant. The Claimant did not approach the Defendant’s medical Personnel for any complaints. That, the Claimant’s acts of absenteeism for three (3) working days, had cost the Defendant serious economic loss and damages to its business. That, the Claimant on the 7^th April 2017 admitted and confirmed via email, ‘Without Prejudice’ to the Defendant, that he sent his resignation letter alongside his identification card on the 3^rd April, 2017. That the Claimant’s resignation letter dated 3^rd April, 2017 is a clear breach of Bond Agreement dated 18^th March, 2017 duly signed and executed by the parties. That by the provision of the said Bond Agreement the Claimant cannot leave the Defendant’s employment within a period of (2) two years from the 1^st May, 2016. That the Defendant had written a letter terminating the Claimant’s employment on the 6^th April, 2017 based on the Claimant’s acts of misconduct by abandonment of duty but was sent to the Claimant on the 7^th April, 2017 via Email. That failure of the Claimant to report to duty without any excuse or reason is a gross misconduct which enables the Defendant to dismiss the Claimant summarily. That passengers were stranded at the Airport because the Claimant was not available to fly the airline thus occasioned economic loss and hardship to the Defendant. That the Defendant terminated the Claimant’s appointment in good faith based on the Claimant’s acts of misconduct and abandonment of duty, much after it had received the Claimant’s resignation letter and not in anticipation of the Claimant’s resignation letter. That the Claimant/Defendant to counter claim is still in default of financial burden expended on him during training and reimbursement of his employer having resigned his appointment outside the stipulated time contained in the executed Bond Agreement.

REPLY TO STATEMENT OF DEFENCE AND DEFENCE TO COUNTER-CLAIM

The Claimant in Reply to fresh issues raised in the Defendants Statement ‘of Defence and Counter-Claim denied the averments of the Defendant together with the reliefs sought under the Counter-claim. The Claimant notes that the question whether or not he resigned his appointment in this case is not relevant to the determination of the issue whether or not “the Claimant was rightly dismissed from service on the ground of misconduct” as the Claimant’s purported resignation letter (though dated 3rd April, 2017) relates to non-existing employment as at the time the letter was submitted to and received by his employer.

SUBMISSIONS ON BEHALF OF THE DEFENDANT

The Defendant submitted 6 issues for the determination of this Court. They are:

Whether the Claimant’s resignation letter dated 3^rd April, 2017 (Exhibit D1) did not take immediate effect from the date it was posted by Courier.
Whether the Claimant had not terminated his own appointment from the Claimant’s employment by virtue of his resignation letter of 3^rd April, 2017 (Exhibit D1) even before his appointment was terminated by the Defendant by a letter dated 6^th April, 2017 (Exhibit C2).
Whether the Claimant acts of absenteeism and abandonment of the Defendant’s duty for 3 days does not constitute a gross misconduct as to warrant his summary dismissal.
Whether the Claimant is allowed by law to raise fresh issues in his reply to the Defendant’s statement of defence and whether the fresh issues raised by the Claimant in his reply does not constitute an abuse of court process.
Whether the Claimant’s depositions in his written deposition on oath dated 27^th July, 2017 and additional witness statement on oath dated 3^rd October, 2017 have not violated the relevant provisions of the Evidence Act, 2011 and the Oaths Act, so as to enable the depositions to be struck out.
Whether the Claimant is not in breach of the provisions of the Bond Agreement dated 18^th March, 2017 (Exhibit D3) as to warrant the Defendant’s being entitled to refund of the expenses incurred on the Claimant.

Issue 1: Whether or not the Claimant’s resignation letter dated 3^rd April. 2017 (Exhibit D1) did not take immediate effect from the date it was posted by Courier.

The Defendant/counter-Claimant submits that the Claimant’s resignation letter dated 3^rd April, 2017 and sent by Courier takes effect immediately same was posted and not from the date it was received by the Defendant; unlike the other modes of communication which normally takes effect upon receipt of such letter or correspondence – Adams v. Lindsell (1818) 1B. & A; Kuku v. Permaroof Contractors Ltd. (1971) U.I.L.R. 101. Household Fire Insurance Co. v. Grant (1879) 4 Ex. Division 216.

Issue 2 – Whether the Claimant had not terminated his own appointment from the Claimant’s employment by virtue of his resignation letter of 3^rd April, 2017 (Exhibit D1) even before his appointment was terminated by the Defendant by a letter dated 6^th April, 2017 (Exhibit C2).

Defendant submits that the Claimant had lawfully terminated his own appointment with immediate effect as stated in his resignation and whatever action that might have been taken against him by the Defendant is an afterthought, baseless and nullity. Defendant contends that the Claimant had by Exhibit D2 (email printout) admitted that he sent his resignation letter and identification card to the Defendant’s head office since 3^rd April, 2017. They submit that it is an admission, and facts admitted need no further proof – Ogbona v. Ogbuji (2014) 6 NWLR (PT 1403) 205 @ 235 paragraph C. They referred to the case of Taduggoronmo v. Gotom (2002) 4 NWLR (PT. 757 PG 43, where it was held that the:

Employee has the absolute power to resign his appointment with immediate effect, and to reject his resignation letter is tantamount to forced labour, and against the time-honour labour law principle that an employer cannot force himself on an unwilling employee.

They also referred to the case of Yesufu v. Gov. of Edo State (2001) 13 NWLR (PT. 731) 517, where it was held that:

An employer has no right to reject the resignation letter of its employee, for whatever reason”. The court held further that “the remedy available to the employer, where the employee, in such a case, resigns without notice would likely be damages and certainly not specific performance. In other words, such resignation still remains valid but would be treated as wrongful but null and void.

Similarly, In the case of Adefemi v. Abegunde (2004) 15 NWLR (PT. 895) 1, it was held that:

Once an employee tenders his resignation, he ceases henceforth to be an employee, regardless of a rejection of the resignation by the employer. The employee’s resignation would have immediate effect even where he continues to come to work after his resignation.

Issue 3 – Whether the Claimant acts of absenteeism and abandonment of the Defendant’s duty for 3 days does not constitute a gross misconduct as to warrant his summary dismissal.

Defendant contends that on return from a training sponsored by the Defendant abroad on the 29^th March, 2017 returned on 3^rd April, 2017 and rather than report to the Defendant’s duty and give account of his stewardship abroad, claimed to be down-ridden with back-ache and food poison, the illness of which was never reported or communicated to the Defendant officially or un-officially.

Defendant contends that in order to put a check on absenteeism and maintain discipline in the workplace, the Supreme Court have been unsparing in upholding the dismissal of employees who absent themselves from duty without justification. They referred to the case of Udegbunam v. Federal Capital Devt Authority (2003) volume 12 MJSC, p. 64, @ 74, Para D, the Supreme Court held per Niki Tobi JSC that:

Although the Appellant was by paragraph 4202 of the Federal Civil Service Rules due for dismissal from service, the Respondent’s magnanimity resulted in the termination of his appointment. This is an order. An employer has a discretion to give lesser punishment to an employee but it has no discretion to give a higher punishment”

From the foregoing, Defendant submits that the failure of the Plaintiff to be present in the Defendant’s office on his return from the trip, without permission, amounted to a misconduct which could bring about dismissal but the Defendant only magnanimously terminated his appointment.

They cited the following cases illustrating where the courts have upheld dismissals for absenteeism: Osakue v. Federal College of Education (Technical) Asaba (2002) 7 NWLR (PT 765), where the appellant, a senior lecturer with the respondent, pursued a full time doctoral programme in the University of Benin without due permission. On his employer detecting the cause of his absence, he was terminated. His action for wrongful termination of his employment failed; British – American Insurance Co v. Omolayo (1991) 12 NWLR (Pt. 176) 721, where absence from duty for a week earned the respondent summary dismissal. His action for a declaration that the dismissal was wrongful met with failure; and Lake Chad Research Institute v. Ndefoh [1997] 3 NWLR [PT 491] 72, where the Respondent was absent from duty for two days without permission and his contention that he was entitled to fair hearing before dismissal was dismissed by the Court.

Defendant explained that the contract between the Claimant and the Defendant is regulated by Personnel Policies (Employees’ Handbook) (Exhibit C7). They contend that the Handbook being regulatory in nature is not absolute as the employer reserves the right to levy appropriate punishment on an erring employee and referred to the case of Osagie v. New Nigerian Bank Plc [2005] 3 NWLR [PT 913] 513 @ 534, where it was held that: “employer can summarily dismiss for gross misconduct not provided for in the collective agreement and that collective agreement did not dispense with an employer’s right of summary dismissal for gross misconduct”.

They note that the Handbook in Article 16.0 at page 60-61 provides for disciplinary procedure which should be meted out to an erring employee. Paragraph 3 of page 61 of the Handbook (Exhibit C7) provides thus:

notwithstanding the above, management reserve the right to summarily dismiss from the employment of the company, any employee found to be guilty of any of the misconducts as listed under Article 16.1

Issue 4 – Whether the Claimant is allowed by law to raise fresh issues in his Reply to the Defendant’s statement of defence and whether the fresh issues raised by the Claimant in his Defence to counter-claim does not constitute an abuse of court process.

Defendant contends that the Claimant in his Reply to statement of defence and defence to counter-claim raised new issues that were not pleaded or stated in his statement of claim, namely;

The issue of “Medical Insurance Policy”, raising the new issue as to the fact that the Defendant does not have a Medical Insurance Policy for the treatment of its employees.
The issue regarding “remittance of the Claimant’s tax deductions and tax clearance certificate to the appropriate Tax office during the Claimant’s employment with its Airline.
Paragraphs 15, 16, 20 and 21 of the Reply.

They contend that these issues raised are new, not pleaded in the statement of claim, and are ploys and antics to spring surprises on the Defendant and to overreach the Defendant.

Issue 5 – Whether the Claimant’s depositions in his written deposition on oath dated 27^th July, 2017 and additional witness statement on oath dated 3^rd October. 2017 have not violated the relevant provisions of the Evidence Act 2011 and the Oaths Act so as to enable the depositions to be struck out.

Defendant submits that every pleading must comply with the rules of evidence. A party is not allowed in evidence to plead law in his oath, conclude, raise legal opinion and argue. This is an act contrary to the rule of evidence. That the Supreme Court dismissed in its entirety as baseless and lacks of merit the act of the appellant in pleading issues which are not facts in the case of Udegbunam v. FCDA (2003) 12 MJSC VOL 12 at page 64 @ 73 paragraph F. where it was stated that “every pleading must state facts and not law. So that a plaintiff who wishes to prove at the trial that a particular law applies to his case must state the facts which make the law applicable and will not be allowed to plead conclusion of law”.

The argue that, as held in Dasofunjo v. Ajiboye (2017) LPELR-42354 failure of the witness statement on oath and affidavit in support of a process to comply with the relevant provisions of the Oaths Act and Evidence Act respectively, render the depositions in the oath incompetent. They submit that substantial paragraphs in the written deposition on oath of the Claimant dated 27^th July, 2017 and additional witness statement on oath dated 3^rd October, 2017 violates section 115 of the Evidence Act and that the paragraphs should be expunged and struck off from the Claimant’s evidence as containing arguments, prayers and argument which are not facts. They rely on the case of Military Governor of Lagos State v. Ojukwu (2001) FWLR (PT 50) 1779 where it was held that “paragraphs 14-17 of the applicant’s affidavit offend all known rules relating to affidavits. They argue that one of those rules is that contained in Section 87 of the Evidence Act, 1990 (now section 115 (2) of the Evidence Act and that the consequence of offending section 115 of the Evidence Act, 2011 is that the offending paragraphs must be struck out.

ISSUE 6 – Whether the Claimant is not in breach of the Bond Agreement dated 18^th March, 2017 (Exhibit D3) as to warrant the Defendant being entitled to refund of the expenses incurred on the Claimant.

Defendant referred to paragraph “F” of the Bond Agreement, providing that “after the completion of the training, the employee shall channel the skills acquired during the training to the development of the employer’s organisation and shall remain with the employer for a period not less than two years from 1^st of May 2016″ and Paragraph “G” of the same Exhibit D3 which provides that “where the employee leaves the employer within a period shorter than the one stated in clause (e) above, the employee shall reimburse the employer all the expenses incurred during the training in lieu of the completion of the period stated above”.

They contend that the Claimant resigned his appointment from the Defendant Company less than one year from the date Exhibit D3 was signed by the parties and that it is a clear cut breach of contract by the Claimant. Defendant further contends that by paragraph “H” of the Bond Agreement (Exhibit D3) the employee shall provide at least one surety who shall be responsible for the act of the employee where there is default”, and that the Claimant in contravention of the said provision of the Bond Agreement resigned his appointment from the Defendant’s employment without making any recourse to his surety to stand for him.

SUBMISSIONS ON BEHALF OF THE CLIAMANT

The Claimant in his final written address raised the following issues for determination:

Whether the Termination/Summary Dismissal of the Claimant from the service of the Defendant/Company is in accordance with the contract of Employment Exhibit C1, Personnel Policy (Staff Handbook, ExhibitC7), the Labour Act and the Provisions of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) dealing with Fair Hearing?
Whether if the answer to issue (a) is in the negative, the Claimant is not entitled to the reliefs claimed in this action?
Whether in the circumstance of this case, the Defendant is entitled to its Counterclaim before this Honourable Court?

Issue A:

Claimant contends, referring to his letter of employment (Exhibit C 1, 2nd Paragraph) that he had been confirmed after six (6) months’ probation and therefore entitled to three months’ notice before the termination of his appointment. Claimant referred to the case of British Airways v. Makanjuola (1993) 8 NWLR (PT. 311) 276, AT 289 PARAS F-G, H-C. He contends that the disciplinary procedure in the staff handbook was not adhered to in terminating his employment and the rules of natural justice not applied. Claimant contends that absenteeism is not part of conducts liable to summary dismissal as stated under Article 16.1 at page 62 of Exhibit C7, rather he was entitled to be warned twice before a query which can lead to the termination of his appointment. On the issue of denial of fair hearing, he referred to the dictum of Lord Denning M.R in the case of Kanda v. Government of Malaya (1962) A.C. 322, AT 337.

Issue B – Whether if the answer to issue (a) is in the negative, the Claimant is not entitled to the reliefs claimed in this action?

Claimant submits that Issue (b) follows from the answer to Issue (a) above, and argues that he has by evidence established and proved the reliefs sought in this case, item by item.

Issue C – Whether in the circumstance of this case, the Defendant is entitled to its Counterclaim before this Honourable Court?

Claimant submits that there is no evidence from the Defendant supporting the counter-claim and the particulars of amount pleaded as Counterclaim. He contends that Defendant’s reliance on his purported letter of resignation for the counter-claim cannot be accepted because Defendant had clearly stated that it terminated the Claimant’s appointment in good faith based on the Claimant’s act of misconduct and abandonment of duties before the Defendant received the Claimant’s resignation letter and not in anticipation of the Claimant’s letter. He therefore argues that the issue whether or not he resigned his appointment is not relevant for the determination of the wrongful dismissal of the Claimant.

Claimant further contends that as soon as the Claimant received the Defendant’s letter of wrongful summary dismissal, he instructed his lawyer to demand that the wrongful letter of dismissal from service of the Defendant’s Company be withdrawn because it constitutes a serious indictment on his professional career for which he will demand an aggravated damages if not withdrawn. That that demand was not adhered to leading to his writing the letter ‘without prejudice’. in the process of possible negotiation for a compromise with the understanding that if the negotiation failed, that letter was not going to be admissible in evidence against him as an admission. He therefore submits that Exhibit D2 cannot be given or construed in evidence against the Claimant as evidence of an admission of the Claimant’s resignation. He referred to the case of Fawehimi V. N.B.A (1989) 2 NWLR PT. 105 AT PAGE 62 AND 63, PAR. H, it was held not to be admissible against the maker of the offer under condition of “without Prejudice”.

He submits that Exhibit D2 was wrongly admitted and urges that it be disregarded. He further submits that a resignation letter takes effect from the date the employer receives it and a termination letter takes effect from the date the employer issues the letter. He argues that the Presumption of regularity of the acts of Public officers such as the post office does not extend to courier services.

Claimant also submits that the bond agreement on which the Defendant predicated its Counterclaim is not only irrelevant but inapplicable to this case. That the period to which the bond relates is 11^th April, 2016 to 1^st May, 2016, (one month) during which period of training an employee is not expected to leave the Company. He also contends that clause H provides that an employee shall provide at least one surety which shall be responsible for the act of the employee where there is a default during the training period and submit that to the extent that the Defendant made no recourse for the intervention of the sureties before coming to court as required by the Bond, the Counterclaim before the court is premature and incompetent.

With reference to Defendant’s issue 5, Claimant submits that it is not an issue arising from the facts pleaded and evidence given.

Defendant’s Reply on Points of Law:

The Defendant first noted that it controverted Claimant’s evidence and that even if it did not, the Court still has to evaluate the Claimant’s case to see if his evidence is cogent and credible.

On the issue of the use of “Without Prejudice” in exhibit D2, Defendant submits that the cases cited by Claimant do not apply as Exhibit D2 was not made in the process of negotiation or for the purpose of settlement.

On the issue that the Defendant did not follow the laid down disciplinary procedure as contained on Article 16.0 page 61, which states that after three offences and record of warnings to an employee:

Notwithstanding the above, management reserve the right to summarily dismiss from the employment of the company, any employee found to be guilty of any of the misconducts listed under Article 16.1

Defendant argues that the use of the word ‘notwithstanding’, implies that the Defendant has the discretion to follow the three procedures mentioned on page 61 or not; and that the circumstance of the suit herein had made the Defendant not to use the procedure.

On the issue that there was no evidence before the court on when the letter of resignation was posted or received, Defendant submits that by virtue of Section 167 (d) of the Evidence Act:

The court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the court may presume that:-

Evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.

Defendant then argues that the failure of the Claimant to provide the evidence of the postage of the resignation letter was deliberately done to withhold the fact and accordingly, under cross examination he said that, “I cannot ascertain the date I sent it but it was still within the period of my sickness”. They then submit that because the Claimant had stated that he posted his resignation letter, it is his duty to lead evidence on that by showing the receipt and failure to do that would lead to invocation of presumption under Section 167(d) of the Evidence Act, 2011. See the case of N.S.C. (Nig) Ltd v. INNIS-PALMER (1992) 1 NWLR (PT 218) 422 C.A. Defendant then urged the Court to discountenance the argument of the Claimant as contained in its brief and grant the prayers of the Defendant.

COURT’S DECISION

I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses. I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour. In addition, I evaluated all the exhibits tendered and admitted. Having done all this, I set the following issues down for determination:

When did the employment relationship between the parties come to an end?
Whether the Claimant is entitled to his Claim;
Whether the Defendant is entitled to its Counter-Claim.

Issue 1

Relief ‘D’ seeks an interpretation that in law, a Letter of Termination/Dismissal of Appointment issued by an employer takes effect from the date it was issued, while that of the resignation of appointment by an employee takes effect from the date it was received by the employer (Defendant). The question put to this Court by this Relief refers to determination of contract of employment by Notice. This can emanate from the employer or from the employee, in which case it is commonly called resignation. Many employment contracts expressly set out how notice of termination by an employer is considered to have been received by the employee. Disputes arise where contracts are silent on this. Notice has been described as a formal information that brings home to the mind of a reasonably intelligent and careful reader, such notice that the contract of service is to come to an end, on a particular date. Notice of termination of employment has been held severally not to be effective until received by the employee; and this has been as far back as Precious v. Readie (1924) 2 KB 147. This is not any different if the notice is coming from the employee to the employer. In the case of WAEC v. Oshionebo (2006) 12 NWLR (Pt.994) pg.258, The Court held:

I here pause to discuss the law relating to notice of resignation, the law is that a notice of resignation is effective not from the date of the letter, nor from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent. Per ADEREMI, J.C.A. (P.17, Paras.D-F)

See also, the case of Eka v. Kuju (2013) LPELR-22124 (CA) 16, para. A; where it was held that “It is trite that a letter becomes effective upon delivery”.

In the case of Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22 the Supreme Court had to consider when termination on notice, delivered by post, took effect. Was posting the letter (the ‘postal rule’) enough, did it have to arrive at the employee’s home (‘receipt’) or did it have to be actually read by the employee (‘communicated’)? The facts of the case is that The employee (Ms Haywood) was informed by her employer (the Trust) that she was at risk of redundancy about 13 weeks before she turned 50 on 20 July 2011. Redundancy after her 50th birthday would have entitled her to a considerably more generous pension than redundancy beforehand. Ms Haywood was contractually entitled to be given 12 weeks’ notice, but her contract was silent about how notice was deemed given. At a consultation meeting, Ms Haywood informed her employer that she was on holiday from 19 April until 3 May 2011. She then went abroad from 19 to 27 April. On 20 April, the Trust sent three letters confirming the redundancy and terminating Ms Haywood’s employment with 12 weeks’ notice, to terminate on 15 July 2011.

One letter was sent by recorded delivery and was collected by a family member from the sorting office on 26 April and left at Ms Haywood’s home on the same day. Ms Haywood read this letter on 27 April. Another letter was sent by standard mail to her house and a third was sent by email to Ms Haywood’s husband’s email address. she read it on 27 April too.

If the letter had been served by 26 April 2011 then the notice period would have expired before Ms Haywood’s 50th birthday on 20 July 2011 so that she would only have been entitled to a lower pension than if it had expired on or after that date. The question for the courts was whether time started by (a) when the letter was posted, (b) its delivery to Ms Haywood’s home, or (c) her actual receipt of it.

The High Court and Court of Appeal found that where there was no express term, notice was only effective once Ms Haywood had actually read the letter of dismissal. This had the effect that Ms Haywood had been employed up to and including 20 July 2011 (her 50th birthday) and she was entitled to the higher pension.

The Trust then appealed to the Supreme Court which also dismissed the appeal by a majority. It held that:

When dealing with written notice sent by post, and in the absence of an express contractual term specifying when a notice of termination is effective, the notice starts to run when the letter comes to the attention of the employee and they have either read it or had a reasonable opportunity of doing so. The court rejected the Trust’s argument that notice would start to run either when the letter would have been delivered by post or when it was actually delivered to Ms Haywood’s address. Instead it agreed with the EAT’s approach in previous cases.

Another insight into the question of when both a termination and resignation letter takes effect can be determined by answering the question of when a cause of action arises in a termination of employment by notice suit.

In First Bank of Nigeria Ltd. V. Chief Jubilee Karusta-Akporido, (1996) 8 NWLR (Pt. 469) 755, Oguntade JCA citing Oputa JSC held that; “ A cause of action means the factual situation, stated by the Plaintiff, if substantiated entitles him to a remedy against the Defendant”. On when time will begin to run, the court further held that:

Time will start to run when the cause of action arose. It is therefore absolutely necessary when dealing with Limitation Statutes to determine the precise date upon which the cause of action arose. Without this basic fact, it will be impossible to compute the time.

According to Musdapher, JSC in Osigwe v. PSPLS (Supra), “It is only when facts establishing a civil right or obligation and facts establishing infraction or trespass on that right and obligation exist side by side, a cause of action is said to accrue”.

Therefore, if the document conveying the Notice of Termination is sent by post, it can only be upon receipt that a cause of action can arise.

It cannot be that parties determine the date a cause of action arises by the dates they insert on their letters or the date it was sent out, notwithstanding the uncontrollable variables of the means. It has to be a date that the fact is known to the recipient, which is also the date that he/she can take an action in its redress, if a wrong is committed by the letter. The cause of action arises when all the ingredients sufficient to ground a claim has arisen. In this case, we find that all the ingredients sufficient to ground an action in wrongful determination of Claimant’s employment had occurred when the employers received his letter of resignation as stated in Claimant’s letter of 7^thApril 2016.

I therefore find that in the determination of contract of employment by notice of termination or notice of resignation, intended to take immediate effect; it can only take effect on reception of the document conveying such message; and I so hold.

In its application to this suit, it is obvious that a letter of resignation emanated from the Claimant to the Defendant, and a letter of termination was issued by the Defendant on the Claimant. The letter terminating Claimant’s employment (Exhibit C2) is dated 6^th April 2017. The resignation letter sent by the Claimant is shown to have been written on the 3^rd of April 2017. Claimant under cross-examination stated he wrote the letter on the 3^rd of April 2017 but does not remember the date he sent it via courier post. The Defendant has made the submission that a letter sent by post takes effect from the moment it is posted; relying on the case of Adams v. Lindsell(Supra). I need note that in that case, contract of employment was not in issue, and certainly not receipt of letter of termination, as in this case. However, based on our consideration of cause of action and decided cases already referred to, the argument of Defendant relying on Adams v. Lindsell cannot apply here.

There is no contention on the fact that the Claimant upon his return from the UK trip wrote a letter of resignation dated 3^rd April 2017. What the contention is, is, whether it was received before the Defendant wrote its letter of termination dated 6^th April 2017. According to the Claimant, since there is no evidence that it was received before 6^th April, then the contract was terminated by the Defendant’s letter of 6^th April, and his own letter becomes, ‘the purported/alleged letter of resignation’. In arguing that the Claimant had duly resigned before their letter of 6^th April, Defendant refers to the letter written by Claimant on 6^th April admitting that he had resigned before the Defendant’s letter of termination. The said letter sent by email is marked, ‘Without Prejudice’, which the Claimant argues makes it a privileged communication which cannot be utilised in this suit. It becomes necessary at this point, to determine the status of that letter before proceeding.

The Black’s Law Dictionary (10^th Edition) defined the term “Without Prejudice” as, “Without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party”. Under the defunct Evidence Act no admission will be allowed in evidence if it was made either under the express condition that such admission will not be used in a judicial proceeding, or in circumstances where a Court can infer that the parties agreed that such admission obtained during a negotiation, will not be used in a judicial proceeding. Thus, where the Court could infer that the parties agreed admission was obtained/made during a negotiation, it will not be used in the judicial proceedings. Documents bearing ‘without prejudice’ were variously held to be such. See Fawehimi V. N.B.A (1989) 2 NWLR (Pt.105) at page 62 and 63, para H.

The new Evidence Act 2011 has cleared whatever ambiguity that may have existed over the use of the phrase. It provides in section 196 that:

A statement in any document marked “without prejudice” made in the course of negotiation for a settlement of a dispute out of court, shall not be given in evidence in any civil proceeding in proof of the matters stated in it.

Section 196 cited above is of the effect that documents with admissions in them, marked “Without Prejudice”, will only be protected and inadmissible where there is already a dispute in Court; and there is a good faith negotiation to settle such a dispute out-of-Court. I have considered the circumstances under which exhibit D2 marked ‘without prejudice’ was sent:

On the 3^rd of April, 2017, Claimant wrote his letter of resignation (exhibit D1) sent via courier mail to Defendant.
On 6^th April 2017, Defendant wrote exhibit C2, terminating Claimant’s appointment.
On 7^th April 2017 Claimant wrote back (via D2) to Defendant under the heading ‘without prejudice’ stating that:

On 3^rd April, 2017, I had sent both my Medview Airlines identification card and my resignation letter to the Head office. I can confirm that both items have been delivered and received. Therefore, your letter dated 6^th April, 2017 is of no consequence, because it was sent after receipt of my resignation letter which is the first in time and had started to run immediately.

On 7^th June (two months after) Claimant’s Counsel wrote to Defendant (via C3) WARNING them on the effect of their letter terminating the Claimant’s employment, demanding compliance with Exhibit C1 and threatening Defendant with a Court action if their demands were not met in 14 days.

It is this document dated 7^th June that Claimant relies on to say that his communication of 7^th April was made in the context of negotiation and therefore without prejudice. It is spurious to argue that there was any form of negotiation going on before exhibit D2 was made on 7^th April 2017. Certainly, the tone of the letter of 7^th June 2017 was anything but Reconciliatory or negotiatory, and it was made two months after the Claimant had admitted, to the Defendant that both his letter of resignation and ID card had been received by them.

Claimant’s Solicitor’s letter (C3) having been written two months after Exhibit D2 was made, I do not comprehend the argument of Claimant’s Counsel when he states in it that:

It is instructive to note in this case that as soon as the Claimant received the Defendant’s letter of wrongful summary dismissal, he instructed his lawyer to demand that the wrongful letter of dismissal from service of the Defendant’s Company be withdrawn because it constitutes a serious indictment on his professional career for which he will demand an aggravated damages if not withdrawn.

That demand to withdraw the wrongful dismissal of the Claimant with a possibility that the Claimant’s purported resignation could stand to keep the matter at rest was ignored by the Defendant’s Counsel’s letter insisting that both his wrongful letter and the Claimant’s purported letter of resignation should continue until the matter is amicably settled. It was in that process of possible negotiation for a compromise that the Claimant under a condition of “without Prejudice” wrote the Defendant via email, which letter is now tendered as Exhibit D2.

The letter was written clearly under a heading of “without Prejudice” clearly in the understanding that if the negotiation failed, that letter was not going to be admissible in evidence against him as an admission.

Claimant’s Counsel cannot possibly believe himself that a letter of 7^th April was written pursuant to a ‘negotiation’ offered by a letter of 7^th June. I therefore find that D2 was neither made while this matter was in Court or pursuance to any attempt at negotiation or settlement. I also find that it has not met the conditions to enjoy the privilege provided by section 196 of the Evidence Act; and I so hold. I therefore proceed to utilise the content of D2.

In D2, Claimant stated to the Defendant that he had sent a letter of resignation, which he confirms had been received by them. I take this as an admission of the fact of when the letter of resignation was received by the Defendant, in accordance with section 20 of the Evidence Act 2011. This admission Claimant could make since he had, by his admission, sent the letter via the courier service and was in the position to track the package and know when it was received by the Defendant. This fact is within the knowledge of the Claimant but was not brought in evidence. By the provision of Section 167 (d) of the Evidence Act, this Court may presume the existence of any fact which it deems likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of this case. I therefore find that in the earliest, the letter of the Defendant was received on the 6^th of April 2017 on which date it was written; and by the admission of Claimant, expressed in Exhibit D2, Claimant’s letter of resignation had already been received by the Defendant before then. This is what I can decipher by the application of section 167(d) of the Evidence Act from the whole maze of hide and seek displayed by parties in this suit. Also, by section 42 of the Evidence Act, this admission is admissible because as stated in that section:

A statement is admissible where the maker had peculiar means of knowing the matter stated and such statement is against his pecuniary or proprietary interest and –

(a) He had no interest to misrepresent the matter…

Facts admitted need no further proof. See Ojukwu v Onwudiwe [1984] 1 SCNLR 247 at 284, where the Supreme Court, per Aniagolu, JSC held thus:

Another principle deeply enshrined in our jurisprudence is that admissions made do not require to be proved for the simple reason, among others that ‘out of the abundance of the heart the mouth speaketh’ and that no better proof is required than that which an adversary wholly and voluntarily owns up.

By section 27 of the Evidence Act, Claimant cannot after resigning via exhibit C1, and confirming that C1 had been received via exhibit C2, now turn around to deny the effect of the resignation which he had aptly described and admitted in exhibit C2. Having already found that termination of contract of employment, by either party to it, takes effect when received, it follows that by the time the Defendant’s letter was received by Claimant, the

contractual relationship between the parties had already come to an end by the resignation of the Claimant. There was therefore, no more in existence, any contract of employment between the parties for the Defendant to terminate. I therefore find that Defendant’s act of termination is null and void and of no effect having come after the employment had ended.

Issue 2 – Whether the Claimant is entitled to his Claim.

Having found that the Claimant’s employment had ended before the issuance of the ‘purported’ termination letter dated 6^th April 2017, and that the termination letter of 6^th April 2017 was superfluous and of no effect or consequence, the Claimant’s action being founded on the alleged termination or dismissal of his employment by the Defendant, Reliefs B –G(i-ii) dissipates and there is no further need to make any finding on them. Finding on Relief D has already been pronounced. I further find that no evidence was led with respect to relief G(iv) and G(v); they are therefore deemed abandoned. For the avoidance of doubt, I find that the Claimant is not entitled to his Claim in this suit.

The Counter-Claim:

The Defendant counter-claimed for the sum of N10,522.00 USD (Ten Thousand Five Hundred and Twenty Two Dollars Only) being the sum paid by the Defendant to train the Claimant’s abroad from 11^th April, 2016 to 1^st May, 2016; and General damages in the sum of N10,000,000.00 (Ten Million Naira Only) for loss suffered as a result of the Claimant’s breach. The Defendant relied on the Bond Agreement (Exhibit D3) to seek for the refund of the money spent in training the Claimant abroad on the grounds that Claimant’s resignation letter dated 3^rd April, 2017 is a clear breach of the Bond Agreement dated 18^th March, 2016 duly signed and executed by the parties. I have done a critical study of the bond agreement. It provides that:

(a) The employer shall be responsible to pay $10,522.00 USD to be paid for Boeing 767 type rating course at Pan Am International Flight Academy 5000 N.W 36^th Street Miami – Florida, USA.

(b) The training will be for a period of one month starting from 11^th of April, 2016 to 1^st May, 2016.

(d) Having regards to the financial burden borne by the employer and the time sacrificed by releasing the employee to attend the training, the employee shall not be entitled to leave the employer’s organisation during the training period.

(e) Where the employee leaves the employer’s organisation during the period of training, he shall reimburse the employer all the salary earned during the training and other entitlements which he benefited from the employer in addition to the reimbursement of all the expenses incurred by the employer as a result of the training.

(f) After the completion of the training, the employee shall channel the skills acquired during the training to the development of the employer’s organisation and shall remain with the employer for a period not less than two years from the 1^st of May 2016.

(g) Where the employee leaves the employer within a period shorter than the one stated in clause(e) above, the employee shall reimburse the employer all the expenses incurred during the training in lieu of the completion of the period stated above.

The terms of the bond agreement are clear. According to clause ‘g’, it is only where the employee leaves as stipulated in clause ‘e’, that he is liable to repay the money spent for his training. Clause ‘e’ refers to where the employee leaves the employer during the course of training. It is obvious from the evidence before this Court that though the Claimant left before the expiration of two years contrary to his bond agreement, however, he is only liable to refund the training expenses if he left within the period of training, which he did not.

In the circumstance, I find that though from evidence, Claimant violated his bond agreement, Defendant is not entitled to refund of the training expenses because the bond agreement itself provides that it is only when the employee left in the course of training that the employer is entitled to refund.

On the claim for general damages for loss incurred as a result of the breach of contract by Claimant, Defendant did not lead any shred of evidence in proof of the alleged loss. On the whole, I find that the Counter-claim fails.

I make no order as to Cost.

Judgement is entered accordingly.

…………………………………….

Hon. Justice Elizabeth A. Oji PhD