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National Industrial Court

Dr. ALAFIYATAYO AKINOLA A. VS WAZIRI UMARU FEDERAL POLITECHNIC, BIRNIN KEBBI AND ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE SOKOTO JUDICIAL DIVISION

HOLDEN AT SOKOTO

BEFORE HONOURABLE JUSTICE K.D.DAMULAK

ON THURSDAY THE 13TH DAY OF JUNE, 2018

SUIT NO.NICN/SK/03/2018

 

BETWEEN

Dr. ALAFIYATAYO AKINOLA A.

 

CLAIMANT

 

AND

 

  1. WAZIRI UMARU FEDERAL POLITECHNIC, BIRNIN KEBBI
  2. SA’ADU NOMAU
  3. Dr. MUJATABA ABUBAKAR
  4. ABDULAZEEZ YUSUF BAZATA

 

DEFENDANTS

APPEARANCES

  1. C. C. Ojum Esq. for the Claimant.
  2. B. B. Orpin Esq. for the Defendants.

 

JUDGMENT

  1. INTODUCTION

This case hinges on the validity of the resignation letter of the claimant and the validity of the 1st defendant’s letter thereafter inviting the claimant to appear before a disciplinary committee.

By an originating summons dated and filed on 15/2/2018 and accompanied by a supporting affidavit, six annexures and a written address, the claimant sought the following reliefs numbered 1 to 5, 7, 6, 7 and 8 but by an application of counsel on 17/5/2018 while arguing his case, the reliefs were renumbered serially as 1 to 9 and they are;

  1. A DECLARATION that by section 11 of the Labour Act laws of the Federation of Nigeria 2004 either of the plaintiff and the defendant can terminate their contractual relationship.
  2. ADECLARATION that by the tenor of the offer plaintiff’s appointment dated the 7thJuly, 2006 which was later converted to permanent and pensionable on 9th may,2008 and confirmed on 22nd October 2008; either of the plaintiff and the defendant can terminate their contractual relationship.
  3. A DECLRATION that by a letter dated the 16th January, 2018 and received by the defendant on 16th January 2018; the plaintiff has lawfully resigned his appointment with the 1st defendant.
  4. A DECLARATION that the defendants disciplinary power cannot be expanded to include people who are not in its employment.
  5. A DECLARATION that the defendant cannot lawfully constitute any disciplinary committee against the plaintiff after his resignation from the defendant’s employment on 16th January 2018.
  6. A DECLARATION that the disciplinary committee set up by the 1st defendant comprising the 2nd, 3rd and 4th defendants after the plaintiff resignation on 16th January, 2018 which committee sat on 29th January 2018 is illegal; null and void.

7        AN ORDER that the plaintiff lawfully resigned his appointment with the defendant in accordance with its employment on 16th January, 2018.

8          AN ODER setting aside the purported committee sitting of 2nd, 3rd and 4th defendant made on 29th January, 2018 and all matter incidental therewith for being illegal, null and void.

9        ANY OTHER orders as the court may deem fit to make in the circumstance of this case.

By a motion filed on 11/4/2018 and granted on 12/4/2018, the defendants filed a 27 paragraphs joint counter affidavit, ten annexures and a written address.

By a motion dated 26/4/2018 and filed on 2/5/2018 and granted on 17/5/2018, the claimant filed a 25 paragraphs further and better affidavit, two annexures and a written address.

The case was argued by both counsels for the parties on 17th May, 2018.

  1. FACTS OF THE CASE.

The claimant was employed as a probationary contract officer by WAZIRI UMARU POLYTECHNIC on 7/7/2006, then, owned by the Kebbi state Government, (exhibit A). The Federal Government took over the Polytechnic on 1st January 2007 and it became WAZIRI UMARU FEDERAL POLYTECHNIC, the 1st defendant. The claimant’s contract was converted from contract to permanent and pensionable via a letter to that effect dated 9/5/2008 with effect from 10/7/2008,(exhibit B). By a letter dated 22/10/2008, the claimant’s appointment was confirmed with effect from 1/1/2007, (exhibit C). By yet another letter dated 2/4/2009, the claimants service was transferred from Kebbi state Government to the Federal Government based on the takeover of the WAZIRI UMARU POLYTECHNIC by the Federal Government, this conversion was with effect from 1/1/2007,(exhibit D).

On 31/8/2012, the claimant signed a two year IN-SERVICE TRAINING AGREEMENT with the 1st defendant to study M.sc. Genetic Engineering and Molecular Biology at Universiti Putra Malaysia, (UPM), (exhibit WUFED 1). The two years elapsed in September 2014, (exhibit WUFED 2). The claimant applied for and was granted several extensions up to June 2016, (exhibits WUFED 2, 3, 4 and paragraphs 10(f) and (j) of defendants’ counter affidavit).

The claimant did not return to the 1st defendant to resume duties until 30/11/2017 (exhibit F). Claimant did not submit an Msc. Certificate but a PhD Certificate. The claimant tendered a letter of resignation of appointment on 16/1/2018 stated to be with effect on the same date (exhibit G) and did not pay one month salary in lieu. On the 29/1/2018, the 1st defendant served the claimant with an invitation letter to appear before an Adhoc Disciplinary Committee (EXHIBIT H). It is based on this invitation letter that the claimant filed this suit.

  1. CASE OF THE CLAIMANT

In his 26 paragraph affidavit, numbered 1-18 and a second paragraphs 13-17, then a third paragraph 17 and the oath paragraph unnumbered, deposed to by one Elizabeth Fidelis, a litigation secretary in the law firm of claimants counsel, the claimant deposed to the following facts;

  1. That he was employed as a probationary contract officer of the 1st defendant on 7/7/2006, then, owned by the Kebbi state Government, (exhibit A).
  2. That his employent was converted from contract to permanent and pensionable via a letter to that effect dated 9/5/2008 with effect from 10/7/2007, (exhibit B).
  3. That by a letter dated 22/10/2008, his appointment was confirmed with effect from 1/1/2007, (exhibit C).
  4. That by yet another letter dated 2/4/2009, his service was transferred from Kebbi state Government to the Federal Government based on the takeover of the 1st defendant by the Federal Government, this conversion was with effect from 1/1/2007,(exhibit D).
  5. That in 2012, he was allowed to go on study leave with him enjoying his salary and this was after six years of service.
  6. That while he was on his study leave, the defendant stopped his salary from August 2016 to15th January 2018.
  7. That he resumed duties after his studies on 30/11/2017 (exhibit F) but was not assigned any duties neither was he paid any salaries thus his resignation terminating his employment on 16/1/2018.(exhibit H)
  8. That the 1st defendant then served him an invitation letter to appear before an adhoc disciplinary committee comprised of the 2nd to 4th defendants, on 29/1/2018(exhibit H).

Other specific paragraphs of the affidavits may be referred to in the judgment as the need arises.

Submitting on all the issues in his written address, claimant’s counsel submitted that the relevant law is Section 11 (1), (2)(d),(5) and (6) of the Labour Act which he reproduced and submitted that the claimant can lawfully terminate his appointment in accordance with the Labour Act and the terms of his employment contained in exhibit ‘A’. Counsel relied on the case of INAKOJU V ADELEKE without citation.

Counsel submitted that the words of section 11 of the Labour Act are clear and unambiguous and so should be given their plain meaning, citing NIGERIAN ARMY V SAMUEL (2013)56 NSCQR 844 at 847 and ADETAYO V ADEMOLA (2010)  42 NSCQR  1133 at 1139

Counsel submitted further that the constitution of the 2nd, 3rd, and 4th defendants, staff of the 1st defendant, into a disciplinary committee to judge in a case between the claimant and the 1st defendant is wrongful, relying on the case of IKOMI V STATE (1986) LPELR 1482 SC; DANLADI V GANGIRI (2015) 4 WRN 1 at 7 and CHUZIA V OGBOMAH (2016) 34 WRN 151 at 157 on the principle of fair hearing.

  1. CASE OF THE DEFENDANTS

By their joint counter affidavit of 28 paragraphs deposed to by one Alh. Usman Umar Kardi, the registrar of the 1st defendant, the defendant deposed to the following effect;

  1. On 31/8/2012, the claimant signed a two year IN-SERVICE TRAINING AGREEMENT with the 1st defendant to study M.sc. Genetic Engineering and Molecular Biology at Universiti Putra Malaysia, (UPM), (exhibit WUFED 1).
  2. The two years elapsed in September 2014, (exhibit WUFED 2).
  3. The claimant applied for and was granted several extensions up to June 2016, (exhibits WUFED 2, 3, 4 and paragraphs 10(f) and (j) of defendants’ counter affidavit).
  4. The 1st defendant wrote two letters to UPM and twice the university confirmed that the claimant was studying M.sc. Genetic Engineering and Molecular Biology at Universiti Putra Malaysia, (UPM), (exhibits WUFED 5, 6 and 7).
  5. That the 1st defendant had earlier issued two letters of recall from training without approval to the claimant in March 2016 before granting a further 3 months extension to June 2016.(exhibits WUFED 8 and 9 and paragraph 10 (j).
  6. That after the last expiration in June 2016 and the claimant did not resume duties, the 1st defendant stopped claimant’s salaries in August 2016 and issued him two query letters in October 2017,(exhibits WUFED 10 and 11)
  7. That the claimant did not return to the 1st defendant to resume duties until 30/11/2017.
  8. That the Claimant did not submit any Msc. Certificate but a Ph.D Certificate.
  9. That the claimant tendered a letter of resignation of appointment on 16/1/2018 which was stated to be with effect on the same date and did not pay one month salary in lieu.
  10.  That before the claimant’s resignation letter of 16/1/2018, there was already an adhoc disciplinary committee in place and on the 29/1/2018, the adhoc committee served the claimant an invitation letter to appear before it.
  11. That the claimant’s notice of resumption of duty was received on 4/12/2018 and academic activities were grounded because the Academic          Staff Union of Polytechnics (ASUP) was on strike which was only called off at the end of January 2018.
  12.  That the study leave with pay granted to the claimant was a form of sponsorship on the condition stipulated in paragraphs 2.3 and 2.4 of exhibit WUFED 1 which stipulates that the claimant is bound to serve the 1st defendant for two years upon completion of his studies before he can resign or be allowed to go for further studies.

Other specific paragraphs of the counter affidavit may be referred to in the judgment as the need arises.

In his written address, counsel to the defendants raised a preliminary objection challenging the competence of the action and the jurisdiction of this court on the ground that the processes in this suit were issued in Sokoto State and served in Kebbi State without leave of court in contravention of section 97 of the Sheriff and Civil Processes Act.

Arguing the case on the merit, learned counsel for the defendants submitted that the reliefs sought by the claimant are declaratory and equitable thus imposing a huge burden on him to lead credible evidence.

Counsel submitted that the contract of employment as well as section 11 of the Labour Act requires one month notice or one month salary in lieu of notice for a valid resignation or termination.

Counsel contended that notwithstanding section 11 of the Labour Act, each employer employee relationship is regulated by the terms and conditions of the employment which in this case is the letter of employment. That the notice of resignation dated 16/1/2018 states that the resignation takes effect on the same day and no one month salary was paid in lieu and accordingly the claimant did not validly resign in line with the terms of his contract or the Labour Act. Counsel referred the court to the case of OFORISHE V NIG. GAS CO. LTD (2017)50 WRN 27 at 41; MOBIL PRODUCING NIG.UNLIMITED V ASUAH (2002) FWLR (PT. 107) P.1196 at P.1215.

Counsel then submitted that one month means 30 days from the date that the letter of resignation was served on the defendant and not immediately.

Counsel submitted further that based on the terms of contract, by exhibit WUFED 1, paragraph 2.3, the claimant entered into a contract with the 1st defendant to serve for two years after his studies before he can opt to exercise his right of resignation if he chooses to but his purported resignation is in breach of this term. Paragraph 2.3 of exhibit WUFED 1 provides as follows;

2.3 “that at the expiration of the agreement, the officer will return to the service of the polytechnic and MUST serve for a period of 2 years before he/she can leave the service of the polytechnic”

Counsel submitted that paragraph 2.3 of exhibit WUFED1 has kept in abeyance the claimants right to resign his employment with the 1st defendant for at least 2 years after his training and parties are bound by the terms of the agreement they freely entered into, citing UDO OSOH V C.B.N (2010)52 WRN 134 at 148 -149.

Counsel submitted further that by paragraph 2.4 of exhibit WUFED 1, claimant was not allowed to go for another training until he has served for at least two years after returning from this training but the claimant surreptitiously proceeded to his Ph.D  program without recourse to the defendant.

That the claimant did not come to court with clean hands having breached his term of contract by failing to report to work when his university is on break, failing to resume work from June 2016 to November 2017 and proceeding on to a Ph.D program without approval only to resign in January 2018 with immediate effect without paying one month salary in lieu of notice and without serving the 1st defendant for two years.

Counsel then urged the court to dismiss this suit with substantial cost.

  1. CLAIMANT’S FURTHER AND BETTER AFFIDAVIT AND REPLY TO PRELIMINARY OBJECTION.

In his 25 paragraph further and better affidavit, the claimant deposes to the effect that;

  1. The claimant was on a study leave to Malaysia and his masters program was converted to a Ph.D program on 21/8/2014 and so the UPM did not award any masters degree to the claimant but Ph.D.
  2. The claimant upon resignation, still opted to refund and is still willing to refund the 1st respondent any money it deem accrued, but the 1st respondent is just out to dismiss claimant.
  3. The 1st respondent’s practice before now was for any retiring staff who is serving a bond to retire and refund back a monetary value of his remaining bond.
  4. That one ABDULAHI DANDARE had resigned after his masters degree and was not made to face a disciplinary committee but was asked to refund some amount. (exhibits K and L)
  5. That the respondents did not issue any circular to stop this practice since 2015.

Replying on points of law, the claimant’s counsel submitted that the law relating to his retirement and issue of notice is as was stated  by the Supreme Court in ADEFEMI V ABEGUNDE (2003)2 LRECIN to the effect that resignation takes effect from the date the notice of resignation is received by the employer and that the claimant was not expected to pay one month salary in lieu of notice because the claimant has not been on salary, in this case, from August 2016 to January 2018, a period of 18 months.

On the contention of defendants that his right of resignation is put in abeyance by exhibit WUFED1, claimant’s counsel submitted that the law is as stated in the case of ADEFEMI V ABEGUNDE supra at p.220 where the supreme court held as follows;

“It is trite that a right conferred or vested by the Constitution in this case, the right to resign his appointment thirty days before election cannot be taken away or interfered with by any other legislation or statutory provisions except the Constitution itself”

  1. ISSUES FOR DETERMINATION

The six issues for determination are as submitted by the claimant in the originating summons as follows;

  1. WHETHER by the tenor of section 11 (1) (d) of the Labour Act Laws of the Federation of Nigeria 2004, either of the plaintiff and the defendant can terminate their contract of employment.
  2. WHETHER by the tenor of the offer of the plaintiff appointment dated the 7thJuly, 2006 which was latter converted to permanent and pensionable on 9th May,2008 and confirmed on 22nd October,2008; either of the plaintiff and the defendant can terminate their contractual relationship.
  3. WHETHER by a letter dated the 16th January, 2018 received by the defendant on 16th January 2018; the plaintiff did not lawfully resign his appointment with the defendant.
  4. WHETHER the defendant’s disciplinary power can be expanded to include people who are not in its employment.
  5. WHETHER the defendant can lawfully constitute any disciplinary committee against the plaintiff after his resignation from the defendant’s employment.
  6. WHETHER the disciplinary committee set up by the 1stdefendant comprising the 2nd, 3rd and 4th defendants after the plaintiff resignation on 16th January,2018 which committee sat on 29th January 2018 is not illega., null and void.

 

  1. COURT DECISION.

The defendants’ counsel raised a preliminary objection to the competence of this suit and the jurisdiction of this court to entertain same on the ground that the processes were served on the defendants out of Sokoto State and in Kebbi State without the leave of court first sought and obtained, contrary to Section 97 of the Sheriff and Civil Processes Act.

This court is, as a matter of law, bound to consider the objection first.

Submitting on the preliminary objection, learned defendants’ counsel contended that Section 97 of the Sheriff and Civil Processes Act requires that leave be obtained to serve the processes of this court out of Sokoto State and in Kebbi State but such was not done in this case and it renders the suit fundamentally and incurably defective and so the suit should be struck out. Counsel relied on the cases of M.V ARABELLA V NAIC (2008) 34 NSCQR 1091 at 1113; MV MSC AGATA & ANOR V NESTLE NIG. PLC.    (2012)  LPELR  985 CA.

Replying on the preliminary objection, claimant’s counsel submitted that the NICN is one court with its Jurisdiction as Nigeria and the court has judicial divisions for administrative convenience only and no leave is required to serve anywhere in Nigeria let alone within a judicial division and the court should discountenance the preliminary objection of the respondents.

That by Order 1 Rule 10(2) of the Rules of this court, 2017, ”out of jurisdiction” in these Rules means “out of the Federal Republic of Nigeria”, “within jurisdiction” means “within the Federal Republic of Nigeria”, and  “judicial division” means  “a location at which the court carries out its business in any part of the Federation. All judicial divisions of the court shall be one for the purpose of instituting, commencing and proceeding on any matter within the jurisdiction of the court.”

Similarly, that Order 7 Rule 15 of the Rules of this court provides as follows;

“All originating processes or other Court processes filed by any party before the court shall be served on any other party in any part of the federation without   leave of the court”

That section 97 of the Sheriff and Civil Processes Act and the case of MV. ARABELLA V NAIC were cited out of context by the respondents’ counsel. That the NICN is governed by its Rules which have the force of law and must be obeyed. Counsel relied on GATEWAY HOLDING LTD V S.A.M &T (2016) 1 WEN P109 and FDELITY BANK PLC V MONYE (2015) 8 WRN P.29.

It is important that when relying on the provisions of the Sheriff and Civil Processes Act, the import of the Act should always be borne in mind. Sections 96 and 97 of the Act provide as follows;

96(1) A writ of summons issued out of or requiring the defendant to appear at any court of a State or the Capital Territory may be served on the defendant in any other State or the Capital Territory.

(2) Such service may, subject to any rules of court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued”.

  1. Every writ or summons for service under this Act out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)-

“This summons (or as the case may be) is to be served out of the …… State (or as the case may be …. and in the …………. . State or as the case may be).”

 

In the case of ALHAJI NUHU MUHAMMED V. ALHAJI ADAMU AL-HASSAN AJINGI

(2013) LPELR-20372(CA) the court held that;

Service of processes on a defendant outside the jurisdiction of a State High Court but within the Nigerian Federation is governed by the provisions of sections 96, 97, 98 and 99 of the Sheriffs and Civil Process Act. The authority for service of a writ of summons out of jurisdiction of a court, but within the country, is section 96 of the Sheriffs and Civil Process Act. …

Sections 97 and 99 require that such writ of summons issued for service outside jurisdiction must carry on its face an endorsement stating the State in which it was issued and the State it is to be served in and it must also state the time within which the defendant may enter appearance to be thirty days. It is by the provisions of section 96 of the Sheriffs and Civil Process Act that the High Court of a State exercises jurisdiction over defendants outside the territory of the State and once the writ of summons is duly issued and served on such a defendant, the Court will exercise jurisdiction over him as if he was served within the territory of the State. Owners of the MV “Arabella” V. Nigeria Agricultural Insurance Corp (2002) 15 NWLR (Pt 791) 570 at 585 E-G.

 

Similarly, in ALHAJI MOJEED O. IBRAHIM v. CHIEF OYELAKIN BALOGUN & ORS
 (1999) LPELR-13365(CA), the court held;

The scope and application of the provisions of Part VII of the Act dealing with the service of court processes were examined at length by the Supreme Court in Skenconsult Nigeria Ltd. v. Ukey (1981) 1 S.C. 6, and explained, restated and applied in Ezemo v. Oyakhire (1985) 1 NWLR. (Pt. 2) 195; and Adegoke Motors Ltd. v. Dr. Adesanya op. Cit. The ramifications of the material provisions of Part VII of the Act were lucidly expounded in these decisions as to leave no one in doubt that that area of the legislation is to enable court processes to be served on defendants who are residing outside the state issuing the court processes and over whom the issuing state could not as of right have been able to exercise any judicial authority because of the autonomy of the states on the matter but for the special dispensation provided in Part VII that permits the exercise of extra-territorial power for service of process between the states within the country. (underlining supplied)

 See also JUMOSIMA WARI & ORS v. MOBIL INC OF AMERICA & ANOR
(2013) LPELR-21996(CA) .

The scope of sections 96 and 97 of the Sheriff and Civil Processes Act as can be seen from the above authorities therefore is service out of jurisdiction.

Defendants’ counsel submitted further that should the claimant argue that the case of M.V ARABELLA V NAIC supra does not apply to this case because the NICN is a single court with divisions and that Sokoto State has territorial jurisdiction over Kebbi State unlike in M.V ARABELLA V NAIC supra where the writ was issued by the Federal High Court in Lagos and served in Abuja outside the jurisdiction of Lagos division of the court, his response is that such an argument is of no moment because the Sheriff and Civil Processes Act provide that any writ to be served out of a state must be with leave and must be marked accordingly. Counsel relied on BALOGUN V AKPATASON (2015)42 WRN 165 at 192 where the curt held pre Ekpe JCA thus;

“Where a statute provides for the doing of an act in a particular manner, that manner and none other shall become lawful if employed. That is the unalloyed truth”

The defendants’ counsel has therefore, by his submission, tacitly acknowledged the fact that Kebbi State is within the territorial jurisdiction of the NICN Sokoto Division as well as the fact that in M.V ARABELLA V NAIC supra the court found that the writ was issued by the Federal High Court in Lagos and served in Abuja outside the jurisdiction of Lagos division of the court. However, counsel shifted his emphasis from ‘out of jurisdiction’ to ‘out of the state’ used in section 97 of the Sheriff and Civil Processes Act as the determining factor.

I must point out that this argument does not take into consideration the wordings in the rulings in M.V ARABELLA V NAIC and MV MSC AGATA & ANOR V NESTLE NIG. PLC quoted by the same learned counsel. The portion of the judgment in M.V ARABELLA V NAIC supra quoted by learned defendants’ counsel reads as follows;

“When a defendant is outside jurisdiction, no writ for service out of jurisdiction can be issued except by leave of court. The issue of writ of summons and the service of same on the defendant are condition precedent for exercise of jurisdiction over the defendant.” ( underling supplied)

Similarly, the portion of the judgment in MV MSC AGATA & ANOR  V  NESTLE NIG. PLC supra quoted by learned defendants’ counsel reads as follows;

“It is clear that under order 6 rule 12 (1) of the Federal High Court Civil Procedure Rules and indeed section 97 of the Sheriff and Civil Processes Act make it mandatory for leave to be obtained before the issuance of a writ of summons involving a defendant who resides outside jurisdiction of the court and for endorsement of the writ for service outside jurisdiction.’’   (underlining supplied)

It is clear from these judgments therefore that out of state in section 97 of Sheriff and Civil Processes Act was interpreted to mean a reference to ‘out of jurisdiction’ and not merely the fact that a writ is issued in one state and is to be served in another state. It therefore follows from these judgments that if that other state is within the jurisdiction of the court issuing the process, no leave shall be required for service.

The question to be determined herein therefore is whether Kebbi State is outside the jurisdiction of NICN Sokoto Judicial Division. It may be of importance to emphasize the fact that this court is NICN Sokoto Judicial Division, not NICN Sokoto State.

Order 1 Rule 10(2) and Order 7 Rule (15) of the Rules of this court relied upon by claimant’s counsel are apposite and have been reproduced earlier. What is left to be said is that on the basis of the authorities cited, Section 97 of the Sheriff and Civil processes Act only requires leave for service on a defendant who is resident outside the territorial jurisdiction of the court issuing the process. The Jurisdiction of the NICN is the whole of Nigeria and in particular, the territorial jurisdiction of the NICN Sokoto Judicial Division comprises of Zamfara, Kebbi and Sokoto States, a location at which the court carries out its business in that part of the Federation. Sokoto Judicial Division of the NICN is one for the purpose of instituting, commencing and proceeding on any matter within the jurisdiction of the court.

I find that the service of the processes of this court does not require leave to be served in any of the states comprising the National Industrial Court of Nigeria, Sokoto Judicial Division. The service of the Originating summons on the defendants in Kebbi state is valid without leave of court. I so hold.

The preliminary objection accordingly fails and consiquently dismissed.

The six issues formulated by the claimant can be adequately disposed of by determining the validity of the resignation letter of the claimant and the validity of the defendant’s letter inviting the claimant to appear before a disciplinary committee.

Here it is important to outline the facts from the depositions of parties which are established, either because they are expressly or impliedly admitted or uncontestable by reason of the exhibits.

From the affidavit and further affidavit of the claimant, the following facts and their relevant exhibits are taken as proven based on express or implied admission by the defendant;

  1. The facts and history of claimant’s employment with the 1st defendant.
  2. The fact that in 2012, the claimant was allowed to go on study leave with him enjoying his salary.
  3. The fact that his Msc program was converted to Ph.D by the UPM in August 2014.
  4. The fact that the 1st defendant stopped paying claimants salaries from August 2016 to January 15th 2018.
  5. The fact that claimant resumed duties after his studies on 30th November, 2017.
  6. The fact that the claimant tendered a letter of resignation on 16th January, 2018.
  7. The fact that the claimant was invited on the 29th January, 2018 to appear before a disciplinary committee of the 1st defendant on the same date.

From the counter affidavit of the defendants, the following facts and their relevant exhibits are taken as proven based on express or implied admission by the claimant;

  1. The fact that the claimant signed a two year in-service training agreement  with the 1st defendant in August 2012 to study Msc. Genetic Engineering and Molecular Biology at Universiti Putra, Malaysia.
  2. The fact that the claimant applied for and obtained extensions for his program from October 2014 up to June 2016.
  3. The fact that neither the claimant on his own nor the UPM on request of 1st defendant disclosed the fact of the conversion of claimant’s program from Msc to Ph.D program.
  4. The fact that the claimant was away from his duty post from July 2016 to November 2017 without leave from the 1st defendant.
  5. The fact that on return in November, 2017, the claimant presented a Ph.D certificate and not an Msc certificate.
  6. The fact that the 1st defendant had issued two queries to the claimant in October, 2017 to which the claimant did not respond.
  7. The fact that as at 4th December, 2017, when the letter of resumption of office from the claimant was received by the 1st defendant, the Academic Staff Union of Polytechnics (ASUP) was on strike and only called off the strike at the end of January, 2018.

Claimant’s counsel submitted that the constitution of the 2nd, 3rd, and 4th defendants, staff of the 1st defendant, into a disciplinary committee to judge in a case between the claimant and the 1st defendant is wrongful being in breach of fair hearing.

This court does not need to waste much verbiage in holding, as I now hold, that this position of the claimant is wrong; discipline of employees being within the exclusive jurisdiction of the employer so long as the applicable rules are followed.

Claimant’s counsel in his submission on the implication of his resignation letter dated 16/1/2018 and the letter of invitation from the 1st defendant dated 29/1/2018 for him to appear before a disciplinary committee implies a contention that the claimant ceased to be an employee of the 1st defendant from 16/1/2018 and so the 1st defendant had no power of discipline over him.

The defendants’ counsel on the other hand contends that the claimant was still a staff of the 1st defendant as at 29/1/2018 because the claimant did not validly resign on 16/1/2018 for two reasons namely;

  1. The claimant’s notice of resignation dated 16 /1/2018 could only determine his employment on 16/2/2018 which is the stipulated 30 days since the claimant did not tender any salary in lieu.
  2. The claimant could not legally exercise his right of resignation at the time he did in view of his contract with the 1st defendant, particularly paragraph 2.3 of exhibit WUFED 1.

It must first be noted that the claimant in his originating summons omitted the fact that he signed exhibit WUFED1 before proceeding on his study leave. The claimant also in his originating summons talked about resuming his office after his studies in November 2017 as if that was his approved length of study leave, he did not say whether August 2012 to November 2017 was the length of his approved studies.  He was quiet on the fact that his studies was initially approved for only two years which ended in September 2014 and was further extended severally to June 2016. Claimant therefore left the period of July 2016 to November 29, 2017 (a period of 17 months) unexplained. These facts were deposed to and explained by the defendants with exhibits in proof. The claimant did not deny these facts in his further and better affidavit. They are therefore taken as true and accepted by the court, being believable.

Both parties are agreed that each party can determine the contract of employment by giving one month notice of resignation or one month salary in lieu of notice in line with the employment contract, Exhibit ‘A’ and Section 11 of the Labour Act, and the defendants also contend that the said right has been put in abeyance by paragraph 2.3 of exhibit WUFED 1.

It is however necessary to observe that exhibit ‘A’ is a temporary or contract employment between the claimant and WAZIRI UMARU POLYTECHNIC, BIRNIN KEBBI which was the property of Kebbi State at the time of the contract. That contract became extinct on 9/5/2008 when the WAZIRI UMARU FEDERAL POLYTECHNIC, the 1st defendant, by exhibit ‘B’ offered to the claimant a permanent and pensionable employment on probation with effect from 10th July 2007. That offer was confirmed on 22/10/2008 by exhibit ‘C’ with effect from 1/1//2007, the date on which the Federal Government took over the 1st defendant. Exhibits ‘B’ and ‘C’ (the employment contract) do not contain any terms as to termination so only Section 11 of the Labour Act will apply.

Section 11(1), (2), (3), (4) and (7) of the Labour Act provides as follows;

(1) Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so.
(2) The notice to be given for the purposes of subsection (1) of this section shall be-
(a) one day, where the contract has continued for a period of three months or less;
(b)  one week, where the contract had continued for more than three months but less than two years;
(c) two weeks, where the contract has continued for a period of two years but less than five years; and
(d)   one month, where the contract had continued for five years or more.
(3) Any notice for a period of one week or more shall be in writing.
(4) The periods of notice specified in subsection (2) of this section exclude the day on which notice is given. 

(7)  All wages payable in money shall be paid on or before the expiry of any period of notice.

(underlining supplied)

The combined effect of these provisions is that where an employee gives notice of resignation and there is no legal impediment to his resignation and the notice of resignation is valid,;

  1. The required length of notice shall be given.
  2.  The employment stands determined only at the expiration of the notice.
  3. The employment stands determined immediately where salary in lieu of notice is paid.
  4. The period of notice specified in subsection (2) of this section (one month) excludes the day on which notice is given, (16/1/2018 in this case). 

This principle applies to both the employer and the employee.

In  HAJIYA JUMMAI JAFARU & ANOR V. MOHAMMED USMAN & ORS (2008) LPELR-8591(CA) the court of appeal, Per Peter-Odili, J.C.A Pp. 11-12,  held as follows;
 

“Resignation from employment is by the giving of the required length of notice or payment in lieu of notice.”

In  SUNDAY V.OLUGBENGA & ORS (2008) LPELR-4995(CA) the court held;

“For more elucidation on the point under consideration, the Supreme court further held in the same case of Benson v. Onitiri (supra) as follows:- “That there is common law right to resign unless there is reason to show that the holder of the office cannot…”

See also 1. W.A.E.C. v. Oshionebo (2006) 12 NWLR (Pt. 994) 258

  1. Riodan v. The War Office (1959) 3 All E.R 522, 588
  2. Benson v. Onitiri (1960) SCNLR 177 at pp. 189-190
  3. Adefemi v. Agunbiade (2004) 15 NWLR (Pt. 895) 1 at p. 28
5.      WAEC v. Oshionebo (2006) 12 NWLR (Pt.994) pg.258

On the authorities of the above cases;

  1. Resignation is by the giving of the required length of notice.
  2. The employer has no discretion to refuse a resignation validly tendered without legal impediments to the exercise of that right.
  3. For determining when the employment stands determined based on the notice, time begins to run on the date the notice of resignation is received by the employer and not on the day the notice is written or on the day the employer approves or accepts the resignation.
  4. For purpose of section 107(1)(f) of the constitution of the Federal Republic of Nigeria, 1999 as amended, an employment is terminated the day the employer receives the notice of resignation.

What these authorities never said or never meant is that an employment stands terminated the day the employer receives the notice of resignation in all cases irrespective of any legal impediment.

There are indeed situations where a notice of resignation cannot terminate an employment. For example;

  1. Where the notice of resignation did not give the required length of notice.

2.     Where the notice of resignation is apparently a pre-emptive action meant to escape the outcome of a pending investigation. See 2. UCTH &ANOR V BASSEY (2008) LPELR-8553(CA) where the court held;

“Now where an employee is placed on suspension, he or she cannot resign and if he or she applies for resignation, it will not be allowed. In this case the appellants were correct to refuse the respondent from resigning because it was a pre-emptive action… It is in evidence that the respondent was suspended and an investigating panel was constituted or set up to investigate the allegation against the respondent. There is clear evidence that the respondent was invited and interviewed by the panel. In the circumstances, can the respondent resign her appointment before the result of the panel is known? The answer must be in the negative and I say a resounding NO she cannot.

3.     Where the employee is under a valid contractual obligation not to resign within some specified period of time and he tenders a resignation letter within that time. See OVERLAND AIRWAYS LTD V CAPTAIN RAYMOND JAM (2015) 62 NLLR (PT.2190 P.525

By exhibit G, the claimant tendered a letter of resignation on 16 /1/2018. Section 11(1) of the Labour Act says the employment contract stands determined or terminated on the expiration of notice given by the claimant of his intention to do so. Since the letter was tendered on 16/1/2018, and the employment of the claimant with the 1st defendant has lasted for more than five years, one month is the required length. Now the notice says ‘with effect from today 16/1/2018’. The claimant contends that his employment is determined on that same 16/1/2018.

 It is my firm view that where a one months notice of intension to resign is required, a notice of resignation issued on a particular date and stated to be with effect on that date will not amount to one month notice of intention to resign as the employee cannot be said to have issued the required length of notice of intention to resign. In this case therefore, the claimant’s notice of intension to resign dated on 16/1/2018 and stated to be with effect from that date does not qualify as one month notice of intention to resign as required by section 11(1), (2)(d) and (4) of the Labour Act. I so hold.

Where the employee does not give one month notice of intention to resign, the law requires that the resigning employee gives one month salary in lieu of notice as rightly argued by the defendants.

The claimant argued that he was not expected to give one month salary in lieu of notice because he was not being paid his salaries for 18 months and he relied on the case of ADEFEMI V ABEGUNDE supra.

It must be noted that  ADEFEMI V ABEGUNDE supra did not say the employee cannot be expected to pay salary in lieu of notice because he was not being paid salaries, what that judgment talked about was post resignation payment to the resigning employee by the employer and not pre-resignation payment by the employee. This is what the judgment said;

“I am of the view that the fact that the University never paid him for the period he was supposed to have been waiting for the acceptance of his resignation confirms the fact that the resignation was effective.”

Furthermore, when an employee is required to give a required length of notice of intention to resign or salary in lieu and the employee chooses to give a notice, it is either one or the other. Where the employee chooses to give a notice, He cannot claim that what the employee is owing him be converted to salary in lieu, his employment will only determine at the end of the notice given and until then, the employee remains in the employment and is subject to all the conditions of service including discipline.

In the Supreme Court case of RUFUS FEMI AMOKEODO V IGP (1999) 6 NWLR (PT.607) 467; (1999) 5 SC(PT.11)1, the appellant was entitled to retire by giving 3 months’ notice of his intention to retire or payment of 3(three) months’ salary in lieu of notice under section 21(1) of the Pension Act, he gave his employer his letter of intention to retire and requested in that letter that his accumulated leave for 1987,88-89 be utilized for the 3(three) months’ notice as required by the Act. The court held;

The said provision of the Act allowed a retiring officer a choice. A three months’ notice or payment of 3 months’ salary in lieu of notice. It is either one or the other. The appellant made a choice by giving a notice of three months to retire. He will abide with the legal consequences that flow from that choice. This being that he remained in the service until the expiration of his three months’ notice. Within that period, he also remained subject to all the benefits and advantages that an officer of his rank is entitled to. He was also subject to any disciplinary measures that his employers deemed necessary to maintain generally on a serving officer. The dismissal of the appellant within the period of his retirement notice is the exercise of the right of the respondents over one of the serving officers in the Nigerian Police Force.

Since the claimant’s notice of resignation was dated 16/1/2018, the legal implication is that the employment will only stand determined after one month and the claimant was still an employee of the 1st defendant as at 29/1/2018 and subject to any disciplinary procedure.

 

I am further fortified in this view by the judgment of my lord Amadi J who, relying on the above authority of  RUFUS FEMI AMOKEODO V IGP supra, on a very similar issue in  MRS UDUAK YEMI –EWEKA V NIGERIA BOTTLING COMPANY LIMITED 5ORS, SUIT NO. NICN/LA/458/2013,  the judgment of which was delivered  at the Lagos division of this court on 4th July, 2017, my lord held;

“It is very obvious that the claimant did not pay any money in lieu of notice. She chose the option of giving notice. The offer of using her outstanding leave as notice is inapplicable by the above Authority of Rufus Femi Amokeodo v IGP (supra). The implication here is that she remained a staff of the defendant during the period of her notice, which is one month. And by section 18 of the Interpretation Act Cap 123 Laws of the Federation of Nigeria 2004 “month” means a calendar month

reckoned according to the Gregorian calendar. Since the claimant gave her notice on the 30th of July 2013, it started to run on the 1 st of August 2013 and expired on August 31, 2013, meaning that she was an employee of the defendant and subject to its disciplinary measures or procedures up to and including the 31st August 2013, I so find and hold”.

 

Accordingly, I find that the claimant did not give to the defendant the required length of notice of intention to resign, his appointment did not stand determined on 16/1/2018 and he was still a staff of the defendant as at 29/1/2018 and subject to any disciplinary action that may rightly be taken against him.

It is further the contention of the defendants that the claimant could not validly resign before two years from 30/11/2017 which is 29/11/2019 based on paragraph 2.3 of exhibit WUFED1 and so the resignation letter of 16/1/2018 was invalid. The response of the claimant to this is that the law is as stated in the case of ADEFEMI V ABEGUNDE supra at p.220 where the Supreme Court held as follows;

“It is trite that a right conferred or vested by the Constitution in this case, the right to resign his appointment thirty days before election cannot be taken away or interfered with by any other legislation or statutory provisions except the Constitution itself”

Here again it must be pointed out that counsel missed the point. In that case, what was in issue was the claimants right to resign thirty days before election based on section 107 (1) (f) of the constitution which provides as follows;

  1. Disqualifications

(1)  No person shall be qualified for election to a House of Assembly if—

       (f)        he is a person employed in the public service of the Federation or of any State and he has not resigned, withdrawn or retired from such employment thirty days before the date of election;

 

The resignation of the claimant herein is covered by Section 11 of  the Labour Act, with its requirement of a notice where the employment stands determined at the expiration of the notice given, not Section 107 (1) (f) of the Constitution which does not require notice of intention to resign, it only requires a candidate in Government’s employment to resign 30 days before the date of Election. By the authorities, under Section 107 (1) (f) of the Constitution, such employment stands determined the day the notice of resignation is received by the employer.

See NICHOLAS OLUYEMI & ANOR v. AJEWOLE EDWARD ASAOLU & ORS
 (2008) LPELR-4772(CA) where the court held;

What amounts to resignation of appointment in compliance with Section 107 (f) of the 1999 Constitution? Ordinarily under the common law concept, resignation from employment is by the giving of the required length of notice in the contract of employment or payment in lieu of the notice. Election matters are sui generis. They are in a unique class of their own. ..

In election matters and for the purpose of Section 107(f) of the 1999 Constitution, resignation is dated from the date notice is received. There is absolute power to resign and no discretion to refuse to accept the notice.

The principle relied upon in the case of ADEFEMI V ABEGUNDE supra is not applicable in the present case.

The IN-SERVICE TRAINING AGREMENT, exhibit WUFED1, is a later agreement which seeks to alter Section 11 of the Labour Act, (which by operation of law is written into exhibits B and C, (the original employment agreements), by putting the claimant’s right to resign in abeyance for two years. One may ask if it is allowable in law

In AMRIT LAL GROVER. V. INTERNATIONAL TEXTILE INDUSTRIES (NIGERIA) LIMITED) (1976) LPELR-1342(SC) (NIG.) LTD. (1976) 11 S.C. (REPRINT) 13 the court held;
 

“There is no doubt that the maxim Eodem modo quo oritor eodem modo dissolvitur (what has been created by Agreement may be extinguished by Agreement) applies to the facts of the case in hand. The law is well settled that a later Agreement by the parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the later Agreement is either made under seal or is supported by consideration”.

 

I find that exhibit WUFED1 which seeks to put in abeyance for two years the claimant’s right to terminate the contract of employment as created by the original agreement is both made under seal and for a consideration (salaries during study leave) and is binding on the parties and this court must respect the sanctity of that agreement  and not to rewrite a new one for them.

 

See MR. SEGUN BABATUNDE & ANOR V. BANK OF NORTH LTD. & ORS.
(2011) LPELR-8249(SC),  where the supreme court held;

It is however trite that a court of law must always respect the sanctity of the agreements reached by parties. It must not make a contract for them or re-write the one they have already made themselves.
Owoniboys Technical Services Ltd. v. U.B.N. Ltd. (2003) 15 NWLR (pt. 844) pg. 545.
S.E. Co. Ltd. v. N.B.C. 1 (2006) 7 NWLR (pt.978) pg.201.
The law is that written contract agreement freely entered into by the parties is binding on them. A court of law is equally bound by the terms of any written contract entered into by the parties. Where the intention of the parties to a contract is clearly expressed in a document, a contract agreement; the court cannot go outside that document to give effect to the intention of the parties. The general principle is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument,
Okonkwo v. C.C.B. (Nig.) Plc. (1997) 6 NWLR (pt.507) pg.48
Dalek (Nig) v. OMPADEC (2007) 7 NWLR (pt.1033) pg.402.
U.B.N. Ltd. v. Ozigi (1994) 3 NWLR (pt.333) pg.385 at pg.404.
Nneji v. Zakhem Con. (Nig) Ltd. (2006) 12 NWLR (pt.994) pg.297 SC.
U.B.N. Ltd. v. Sax (1994) 8 NWLR (pt.361) pg.402.

 

Looking at it from another angle, the IN-SERVICE TRAINING AGREEMENT, exhibit WUFED1 amounts to what in law is known as training or employment bond, this much the claimant concedes in his further and better affidavit. The question then is whether the employment or training bond between the 1st defendant and the claimant is enforceable in law.

According to Bimbo Atilola in his book titled Recent Developments in Nigerian Labour and Employment Law: Hybrid consult, Lagos (2017)pp7-8;

“Employment bond is a device by which employers secure their investments on staff training and development. Training is an important business investment, and like all investments, employers expect returns on investments. This is a legitimate expectation and same is recognized in law. The returns are basically in the form of optimal utilization of skills acquired from the training for the growth and development of the company and transfer of the acquired knowledge to the other workforce.

Employment bond is created where an employee enters into an agreement to remain in the employment of his employer for a particular length of time in consideration of the training investment on the employee.

Employment bonds are generally legitimate and enforceable but subject to meeting some conditions… The terms must be reasonable especially the duration of the restrain. The duration of the bond must be seen to be fair and commensurate with the training cost. The court will nullify a bond where the duration or length of the restrain is unreasonable, or where the bond agreement contains onerous or unfair terms.”

 

This subject has attracted judicial pronouncements by this court. In OVERLAND AIRWAYS LTD V CAPTAIN RAYMOND JAM (2015) 62 NLLR (PT. 219) P.525, the Lagos division of this court per Kanyip J discussed the issue, in my view, extensively, if not exhaustively, on pages 599 to 605 and came to the following conclusion at pages 605 and 606 thus;

 

“All these commentators are agreed on the enforceability of training bonds, once it is ascertained that they are reasonable; and reasonability is determined taking into account the duration of the bonding period, how slavish or restrictive the covenants are ,the amount required to be paid in the event of breach or exit from the employment in issue, etc. Regarding the instant case, the answer must be that prima facie, Exhibits C2 and C3 are accordingly not enforceable between the parties being in restraint of trade unless they are shown to be reasonable….

The question, however, still remains; whether the bonding terms are reasonable. Exhibit C2 stipulated a period of 36 months. The commentator, Neil J. MacDonald quoted above talked  of one to two years bonding being reasonable; but 5 years bonding being out-rightly unreasonable..He was silent on three or four years bonding. In my view however, 36 months or 3 years bonding is equally reasonable; and I so hold. In like manner the bonding of 12 months regarding exhibit C2 naturally meets the reasonability test.

 

In the instant case, by the IN-SERVICE TRAINING AGREEMENT, exhibit WUFED1, the claimant was to go for his M.sc. Genetic Engineering and Molecular Biology at Universiti Putra Malaysia, (UPM) for two years, the amount of investment of the defendant was the claimants monthly salaries for the duration of the training which duration was later extended from two years to four years (2012 to 2016) but without any further requirements on the part of the claimant. The expected returns on investment was for the claimant to compulsorily serve the defendant for two years on completion of his training. Chapter 11 paragraph 11.14 of the 1st defendants Staff Manual provides as follows;

 

11.14 BOND

The beneficiary shall be required to enter into a bond to serve the institution for two years for each one year of sponsorship up to a maximum of five years”

 

The IN-SERVICE TRAINING AGREEMENT, exhibit WUFED1, seeks to interfere with and puts the claimant’s right of resignation under the contract of employment and the Labour Act in abeyance for two years after his approved studies which in this case was two years, later extended to four years.

From the above cited authorities, the question now is whether the terms of the bond are reasonable. It is the firm view of this court that a two year bond for training at the cost of two years salaries (extended to four years in this case) is reasonable and thus enforceable. I so hold.

 

The claimant had deposed that upon resignation, he still opted to refund and is still willing to refund the 1st respondent any money it deem accrued and that the 1st respondent’s practice before now was for any retiring staff who is serving a bond to retire and refund back a monetary value of his remaining bond.

He deposed to the example of one ABDULAHI DANDARE who had resigned after his masters degree and was not made to face a disciplinary committee but was asked to refund some amount as shown in exhibits K and L, (approval of resignation of Abdullahi Dandare on condition of refund of outstanding bond sum.) and that the respondents did not issue any circular to stop this practice since 2015.

The problem with these depositions is that there is no evidence in exhibit WUFED1 or from any other document before the court that this was part of the claimant’s agreement with the 1st defendant. There is no evidence of the said policy before the court, and the agreement between the said Abdullahi Dandare and the 1st defendant is not before the court. The court is not put in a position to make any findings on the alleged policy of the 1st defendant.

The defendants had urged the court to discountenance exhibits K and L because they are public documents and have not been certified.

I have observed these exhibits carefully, I find that they are from the file of the 1st defendant but do not belong to the claimant and were not addressed to him, he is not a party to that document but the documents, being public documents, have not been certified. They should be discountenanced by the court and they are hereby discountenanced.

In any event, the contention of the claimant that the policy of the school is for the employee to refund the outstanding bond fund and that the respondents did not issue any circular to stop this practice since 2015 is by implication an invocation of the doctrine of legitimate expectation. The claimant’s counsel made no written submission on this point, I doubt if this point is worth the consideration of this court but for whatever it is worth, the position of the law is that the fact that a public authority has been acting in a given way does not in itself amount to the law, such action on the part of the public authority does not serve as an estoppel so as to preclude it from acting otherwise for good reason and also such action on the part of the public authority is usually superseded or frustrated by the operation of statute and the operation of the policy is a matter of fact. See

FEDERAL BOARD OF INLAND REVENUE v. HALLIBURTON (WA) LIMITED (2014) LPELR-24230(CA).

 

The claimant did not bring the alleged policy before the court, I have taken a look at the Federal Polytechnic Staff Manual applicable to the parties herein, the policy on staff development is contained in chapter 11 and I will reproduce some relevant provisions thereof hereunder.

11.2 DEFINITIONS

(d) Study Leave With Pay: Study Leave With Pay refers to leave for study during which the staff receives payments from the institution in accordance with the approved conditions.

 

11.7 Study Leave

(a)Study Leave With Pay: Members of staff who have served for a continuous period of at least two years are eligible to apply.

 

11.11 CONDITION AND BENEFITS

(d) A staff shall not change his programme of training during the period of study leave without approval.

(e)The period of study leave or study fellowship shall not exceed three years in the first instance but nothing shall prevent extension beyond this period at the discretion of the Staff Development Committee.

(g)Any Staff who abandons a course of training or study sponsored by the institution will be required to refund the total cost incurred on him for the training.

11.12 STUDY LEAVE

(a)Salary: Full salary will be paid by the institution throughout the duration of the approved programme of study.

11.14 BOND

The beneficiary shall be required to enter into a bond to serve the institution for two years for each one year of sponsorship up to a maximum of five years.

 

What I could not see in this policy is refund of outstanding bond except a refund of expenditure where the staff abandons the approved course of studies; this means that refund of outstanding bond must be determined from each bond and that clause is not in exhibit WUFED1 neither is there any evidence before the court of the offer by the claimant to make whatever refunds to the 1st defendant.

The said allegation that upon resignation, the claimant opted to refund and is still willing to refund the 1st respondent any money it deem accrued and that the 1st respondent’s practice before now was for any retiring staff who is serving a bond to retire and refund back a monetary value of his remaining bond is not proven.

This takes us back to the question whether the claimant was entitled to resign his employment with the defendant at the time he did.

The claimant was on training leave and only returned to work on 30th November, 2017 after 17 months without approval. Having found that exhibit WUFED1 is enforceable, the claimant, by that agreement, is under a bond to serve the defendant from 30/11/2017 to 29/11/2019 before he can exercise his right to terminate his employment with the defendant. By submitting a resignation letter on 16/1/2018 is to resign six weeks on return from the training, the resignation of the claimant is in violation of clause 2.3 of his IN-SERVICE TRAINING AGREEMENT in exhibit WUFED1. I so find.

 

On the whole, I find and hold that the claimant did not give a valid one month notice of intention to resign. His employment did not stand determined on 16/1/2018.  The claimant cannot resign his employment with the 1st defendant on 16thJanuary, 2018, he can only exercise that right on 29th November, 2019. The claimant was still an employee of the 1st defendant on 29/1/2018and subject to any necessary disciplinary procedure of the 1st defendant.

Accordingly all the issues submitted by the claimant are resolved against him and in favour of the defendants. The claimant’s suit is hereby dismissed as totally lacking in merit.

 

I make no order as to cost.

 

Judgment is read and entered accordingly.

 

…………………………………………

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN SOKOTO

 

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