Mr. Akinwale Akinjuwon Samson -VS- Francisca Muinat Limited

IN THE NATIONAL INDUSTRIAL CORT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A. A. ADEWEMIMO

DATED: 11^TH OCTOBER, 2018 SUIT NO. NICN/AK/36/2016

BETWEEN

MR AKINWALE AKINJUWON SAMSON CLAIMANT

AND

FRANCISCA MUINAT LTD DEFENDANT

REPRESENTATION:

B. OLADEHINDE FOR THE CLAIMANT.
O. ALAYE FOR THE DEFENDANT.

JUDGMENT

The claimant by a complaint before this Court on the 25^th of October, 2016 claim against the defendant as follows:

a)A Declaration of this Honourable Court that the failure of the defendant to pay the claimant his salary for thirteen (13) months from January, 2015 to January 2016 is wrongful, condemnable and inhuman.
b)An Order of this Honourable Court directing the defendant to pay to the claimant the sum of N2,470,000.00 (Two Million Four Hundred and Seventy Thousand Naira) being his thirteen (13) months accumulated salary arrears from January 2015 to January 2016 calculated at N190,000.00 per month.
c)An Order of the Court directing the defendant to pay to the claimant the sum of N1,000,000.00 (One Million Naira) as general damages for the trauma and inconvenience caused the claimant by the failure of the defendant to pay his salary.

The claimant filed along with the complaint all the accompanying processes, i.e. the statement of facts, deposition on oath of the claimant, list of witness and documents to be relied upon. The defendants on the other hand also filed a memorandum of appearance, statement of defence and all other accompanying processes on the 5^thDecember, 2016.

The claimant’s case is that he is an Applied Geologist and was employed as the Quarry Manager by the defendant vide a letter of employment dated 25^th July, 2014. The Defendant on the other hand, is a duly registered Company with specialty in Mining and Quarry operations. The Claimant was posted to the Defendant’s quarry site located at Ugborowo, Ondo in Ondo State. He stated that the Defendant only kept to the terms of the employment by paying his salary till December 2014 but refused to pay his salary from January 2015 to January 2016. He made several demands through letters and personal requests to the defendant for the payment of his entitlements having worked for the Defendant’s for thirteen months without pay, but there was no response. In view of this default on the Defendant’s part, he was forced to tender his resignation letter dated 25^th January, 2016. He thereafter made several personal visits to the headquarters and branch office/quarry site of the defendant to appeal for the payment of his salary arrears and allowances to no avail. He later instructed his counsel to write the Defendant requesting for the payment. The claimant avers that at the time he resigned, the defendant was already owing him 13 months’ salary in the sum of N2, 470,000.00 (Two million, four hundred and seventy thousand naira only) calculated at N190, 000.00 (One hundred and ninety thousand naira only) per month. He posited that the failure of the defendant to pay his salary had adversely affected the well-being of his family and rendered him irresponsible as he could not meet up with his domestic responsibilities and the care of his family.

WHEREOF the claims against the defendant as aforestated.

The trial in this case commenced on the 13^th of December, 2017with the claimant testifying for himself as CW1, he adopted his sworn affidavit on oath, and tendered several documents which were admitted and marked Exhibits AA1 – AA24. Under cross examination, counsel for the defendant tendered a letter of resignation dated 24/11/2014 through CW1, this document was admitted without objection and marked as Exhibit AA25.

The defendant admitted some paragraphs of the statement of facts and denied some others, and stated in its defence that after appointing the claimant as Manager of the Quarry, he was posted to Ugburowo quarry site where he worked till he voluntarily resigned vide Exhibit AA25. The said letter took effect from 1^st of December, 2014 and his one month salary in lieu of notice was deducted which invariably means that the defendant company is owing him two months salary.

The defendant denied the fact that the claimant ever worked for them from January, 2015 to January 2016, (a period of thirteen months) or that they are owing him any salary for the period, as the claimant had earlier disengaged himself from their employment vide Exhibit AA25 as of 1^st of December, 2014.

The defendant urged the court to dismiss the suit as same is lacking in merit and gold-digging.

The claimant’s reply to the defendant’s statement of defence was dated and filed 20^th of February, 2017 wherein he (Claimant) reiterated all his assertions as contained in the statement of facts and pleaded several documents in response to the statement of defence. These documents were to confirm his employment situation with the Defendant during the period in contention. He urged the court to discountenance the defence of the Defendant and grant his claim in the interest of justice.

The defendant called one Mr. Ganiyu Lasisi to testify as DW1, he adopted his written statement on oath and was cross examined.

Counsel for the defendant filed his final written address on the 24^th of April, 2018 and formulated the following issues for determination:

What is the effect of Exhibit AA25 on the case of the claimant?
Whether Exhibits AA1-AA25 (Documents) tendered by the claimant should be attached any probative value.

On issue one, counsel to the defendant argued that Exhibit AA25 is the letter of Resignation written by the claimant to the Managing Director of the defendant to take effect from the 1^st of December, 2014. He submitted that the document speaks for itself and the principle of the law is that where a document is clear, the operative words in it are to be given their simple and ordinary grammatical meaning. One is not expected to read into the document what is not there, a document that is duly pleaded and tendered once admitted is the best evidence of its content and it therefore speaks for itself. He cited the following cases GOVERNOR OF OGUN STATE V ADEGBOYEGA ADEBOLA COKER (2008) ALL FWLR (PT. 406)1900 @ 1913; DIVINE IDEAS LIMITED V HAJA MERO UMORU (2007) ALL FWLR (PT. 380) 1468 @ 1500; Union Bank v Ozigi (1994) 3 NWLR (PT 333)385 @ 403

He stated that the claimant had under cross-examination clearly informed the court that he wrote Exhibit AA25 and DW1 received the letter (Exhibit AA25) from the claimant.

The counsel further argued that the claimant was not forced to write Exhibit AA25 and same was not withdrawn at any point in time as he neither wrote a letter countermanding it nor was there any letter from the Board of Directors reabsorbing him back to the employment, thus the claimant ceased to be staff of the defendant since 1^st of December, 2014 he therefore urge the court to dismiss the case.

On issue two, whether Exhibits AA1-AA24 tendered by the claimant should have any probative value attached to it. The counsel submitted that Exhibits AA1-AA24 are series of documents tendered by the claimant to buttress the point that he is entitled to his claim, however, he submitted that the documents are more or less worthless papers though admitted but lacks any probative value. He cited the cases of NWABUOKU V ONWORDI (2008) ALLFWLR (PT.331) 1236 @ 1251. ; BUHARI V. INEC (2008) 19 NWLR (PT. 1120) 246 AT 414:

Counsel to the defendant submitted that Exhibit AA2 an acknowledged letter dated the 25^th January, 2016, titled “IMPLORATION TO PAY MY SALARIES AND LIEU NOTICE TO RESIGNATION”, should be totally discountenanced based on the fact that the claimant had failed to disclose clear and straight forward facts as regards same, hence could be said to be withholding evidence. He cited Section 167 (d) of the Evidence Act, 2011.

Counsel submitted that the refusal of the claimant to disclose further evidence as to who received Exhibit AA2 from him if received at all, is adverse to his case as the presumption as far as the letter is concerned is that same was endorsed upon by the claimant himself. The document bears no name, nor signature of the receiver. How then can we say it was received by the person it was addressed to or anybody on his behalf.

He went further to submit that Exhibits AA10 – AA11 are official documents forwarded to DW1 by the claimant, however, same emanated after the claimant had voluntarily resigned. This act presupposes that the claimant chose to voluntarily work without pay, hence he urged the court to take a dim view of the documents, and moreover DW1 clearly stated under cross examination that the documents were minuted to him by the claimant after the tendering of Exhibit AA25 and not in the capacity of the Quarry Manager of the defendant. He therefore urged the court to disregard Exhibits AA1-AA24 tendered by the claimant and dismiss his case in its entirety for lack of merit.

The claimant filed his final written address on the 15^th of May, 2018, which was adopted at the hearing, wherein he formulated two issues for determination by the court, to wit:

Whether from the oral evidence and exhibits tendered by the claimant, the court can reasonably affirm that the claimant worked in the employment of the defendant between the periods of January 2015 to January 2016 such as to entitle him to the reliefs sought before this Honourable Court?

Whether the claimant is entitled to the relief sought before this honourable court.

On issue one, counsel submitted that the claimant during his testimony in chief tendered Exhibits AA1 to AA24 which includes his letter of employment, resignation letter and other documents in proof of his employment relationship with the defendant.

He further submitted that Exhibits AA4 to AA24, which were admitted without objection by this court affirmed that the claimant performed his duties as quarry manager between the aforementioned period without any remuneration, and reiterated that Exhibits AA2 and AA3 equally proved that the claimant made several demands for the payment of his salary for services rendered between the period but to no avail. He urged the court to evaluate and attach evidential weight to these Exhibits. He cited the case of BROWN V. STATE (2012) 3 NWLR (PT 1287) PP 237, PARAS D – F; PARA E.

In response to the defendant’s argument that the claimant had resigned via Exhibit AA25, the claimant’s counsel urged the court to discountenance the argument as Exhibits AA4 to AA24 has undisputedly shown that the claimant had a contract of employment with the Defendant after writing Exhibit AA25. More so, the Claimant through his Reply to the Statement of Defence and his further deposition on oath has explained to this court the circumstance under which he wrote Exhibit AA25, and what transpired between him and the Defendant afterwards. The Defendant on the other hand failed to discredit, challenge or controvert Exhibits AA4 to AA24 which disclosed the existence of employment relationship between the Claimant and the Defendant for the period in question. Counsel argued that uncontroverted testimony needs no further proof and urged the court to evaluate and place reliance on the said Exhibits AA4 – AA24. He cited the case of GOV, ZAMFARA STATE V. GYALANGE (2013) 8 NWLR (PT 1357) P.482 paras D – E,

Counsel for the Claimant submitted that there is nothing on the face of the said Exhibit AA25 which suggests that it was received or approved by the Defendant. This fact was confirmed by the DW1 under cross examination when he admitted that the said Exhibit AA25 was neither acknowledged nor approved by the Defendant. He therefore submitted that through agreement by conduct of the parties, Exhibit AA25 has been expunged and become irrelevant, consequently parties are estopped from raising issues relating to same.

He reiterated that the contents and various correspondences as shown in Exhibits AA4 to AA24 proved beyond any shred of doubt that there existed an unbroken chain of employment contract between the claimant and the defendant between January 2015 and January 2016. He urged the court to examine and scrutinize all exhibits tendered with a view to ascertaining the existence and intention of contractual relation between the claimant and the defendant. He cited G.S & D IND. LTD V. N.A.F.D.A.C (2012) 5 NWLR (PT 1294) P.538 PARAG. G. and urged the court to give the intention of the parties a legal effect. He also cited the case of BFI GROUP CORP. V. B.P.E (2012 18 NWLR (PT 1332) PP 254, PARAS C-D 254 – 255, PARAS H – A, P. 247 PARAS. E – F.

On issue two, counsel submitted that the claimant is entitled to the reliefs sought before this court and proof in civil matter is based on the preponderance of evidence. He cited the case of AREMU V. CHUKWU (2012)3 NWLR PT 1288 PP 613 – 614 PARAS H – A .

The claimant’s counsel argued that apart from the fact that Exhibits AA4 – AA24 tendered as exhibits by the claimant established that the claimant actually worked for the defendant, the evidence of DW1 called by the defendant further strengthened the claims of the claimant that he wrote a recent resignation letter and letter of demand for the salary. Counsel stated that it was confirmed before the court under cross examination that the first resignation letter was also not acknowledged or approved by the defendant. DW1 could not however give any explanation as to how exhibits AA4 to AA24 came into existence between the Defendant and the Claimant, but the revealing admission of the DW1 of the existence and genuine nature of the said exhibits has proved beyond reasonable doubt that the claimant is entitled to the reliefs sought before this court. He therefore urged the court to so hold. He cited the case of TAMTI V. N.C.S.B. (2009) 7 NWLR PT 1141 PP 658 – 659 PARAS H – G.

It is the argument of the claimant that the refusal to pay the thirteen (13) months’ salary due to him has caused him a serious financial hardship and discomfort, such that he should be entitled to damages. The counsel cited the cases of BRITISH AIRWAYS V. ATOYEBI (2010) 14 NWLR (PT 1214) P. 606 Para A. BELLO V. IBADAN TRADERS ASSOCIATION LTD. (1970) N.C.L.R. 215 AT 219, Per AGUDA J.

In conclusion, counsel for the Claimant urged the court to consider viva voce and the documentary evidence placed before the court and give judgment in his favour by granting the reliefs been sought.

I have gone through the processes filed by parties on both sides and I have come up with two issues for determination to wit;

Whether or not Exhibit AA25 is a valid notice of resignation
Whether or not the Claimant is entitled to his claims

The Claimant’s case that he was employed by the defendant on the 1st of August, 2014, and he worked till he resigned in January 2016, based on the failure of the defendant to pay his salary for the period of January 2015 – January 2016.

The defendant asserted that the claimant had ceased functioning as a staff of the defendant since the 1^st of December, 2014, thus, the letter dated the 25^th of January, 2016 is a figment of his imagination. The defendant went further by tendering Exhibit AA25 which is a letter of resignation dated 24^th November, 2014 written by the Claimant. The Claimant in response to this urged the court to discountenance the said Exhibit AA25 as same was refused by the defendant and the defendant cajoled him to continue working for them thereafter.

According to Black’s Law Dictionary 9^th Edition, resignation is an act or instance of surrendering or relinquishing an office, it is a formal notification of relinquishing an office or position as the case may be. See the case of Liman v. Access Bank [2014] 45 NLLR (Pt 146) page 626 @ 657, Para E. the word resignation is commonly described in situations where an employee no longer wish to continue with the employment. It is important to clarify whether or not Exhibit AA 25 constitutes a valid notice of resignation in view of the position of the law.

It is trite law that resignation or retirement takes effect immediately same is communicated/ received by the employer. See Adefemi v. Abegunde [2004] 5 NWLR (Pt.895) 1 CA. it is also an established principle of Law that every employee has the right to resign/ retire from his appointment whenever he so desires as there is also a corresponding right of an employer in a master/servant relationship to terminate its relationship with the employee. The resignation/ retirement is effective in law immediately same is communicated to the employer, even when the employer does not expressly accept it. There is also no need for the employer to reply to the letter of resignation before it becomes effective. A notice of resignation is effective not from the date of the letter, nor from the purported acceptance, but from the date on which the letter was received by the employer or his agent. See WAEC V. Oshionebo [2006] 12 NWLR (pt. 994) pg.258.

In the South African case of African National Congress V. Municipal Manager, George Local Municipality & Ors [2010] 3 BLLR 221 (SCA), the South African Court, while considering a similar issue where an employee tendered a resignation letter, and whether or not the acceptance or refusal of same can change the status of the contract, held that “resignation must be effective immediately from specified date, and being a unilateral; legal act, it does not need to be accepted by the intended recipient to be effected”. Also in Adefemi v. Abegunde supra, the Court of Appeal held that an employee has an absolute power to resign and the employer has no discretion to refuse to accept the notice. The court went on to hold that resignation takes effect from the date notice is received.

Flowing from the position of law it is clear that Exhibit AA25 is a valid notice of resignation as the Claimant did not deny that he wrote the said letter and even communicated it to the defendant. Whatever transpired between himself and the defendant after he wrote and submitted the letter to the defendant is a matter of evidence. I therefore find and hold that Exhibit AA25 (letter of resignation dated 24^th November, 2014) is a valid notice of resignation, based on the evidence available in this case.

Having held that Exhibit AA25 is a valid notice of resignation, the question as to whether or not the Claimant is entitled to his claims needs to be answered, the claims of Claimant are

a) A Declaration of this Honourable Court that the failure of the defendant to pay the claimant his salary for thirteen (13) months from January, 2015 to January 2016 is wrongful, condemnable and inhuman.
b) An Order of this Honourable Court directing the defendant to pay to the claimant the sum of N2,470,000.00 (TwoMillion Four Hundred and Seventy Thousand Naira) being his thirteen (13) months accumulated salary arrears from January 2015 to January 2016 calculated at N190,000.00 per month.
c) An Order of the court directing the defendant to pay to the claimant the sum of N1, 000,000.00 (One Million Naira) as general damages for the trauma and inconvenience caused the claimant by the failure of the defendant to pay his salary.

The Claimant effectively resigned his employment with the defendant with effect from the 1^st of December, 2014 vide Exhibit AA25 and hence a determination of the employment with the defendant. Now, his contention is that the failure of the defendant to pay his salary for thirteen months of work is condemnable and inhuman and that he is entitled to the sum of N2,470,000.00 (Two Million Four Hundred and Seventy Thousand Naira) being his thirteen (13) months accumulated salary arrears from January 2015 to January 2016 calculated at N190,000.00 per month.

The defendant on the other hand contends that this cannot be, as the Claimant voluntarily resigned his employment vide exhibit AA25 and this took effect on the 1^st of December, 2014, he is therefore not liable to the claimant for the said 13 months salaries. It is apparent in this case that the claimant continued working for the Defendant after his resignation, the basis and remuneration involved was not however disclosed from the evidence available, the tendering of a letter of resignation carries with it the right to leave service automatically without any benefit subject to the paying any of his indebtedness to his employer. See WAEC V. Oshionebo Supra. The claim for thirteen (13) months salary based on the former remuneration he was collecting, cannot therefore be supported by the evidence available, as I find that it is the duty of the Claimant to place evidence showing his entitlement to his monetary claim before the court, i.e evidence of the continuous payment of same salary after writing Exhibit AA25 would have helped his case, but no such evidence was produced to enable the court decide on the merit of this leg of his claim, Consequently, I find that Claim for thirteen months salary amounting to N2,470,000.00 (Two Million Four Hundred and Seventy Thousand Naira) calculated at N190,000.00 per month fails for lack of cogent and compelling evidence, and I so hold.

Claim three is for an Order of the court directing the defendant to pay to the claimant the sum of N1, 000,000.00 (One Million Naira) as general damages for the trauma and inconvenience caused the claimant by the failure of the defendant to pay his salary. A thorough perusal of the evidence adduced before the court, reveals that the Claimant rendered service to the Defendant, even after the Claimant effectively resigned the employment with the defendant vide exhibit AA25, there were official communication between the parties, on requisitions and payment for materials for the Defendant’s use which disclosed that the Claimant was still actively involved in the day to day running of the defendant, DW1 admitted as much under cross examination when he stated thus:-

Question- look at Exhibit AA25, that is the original copy sent to your office

Answer-Yes

AA 25 was accepted.

Question-look at Exhibit AA2, what was written at the foot.

Answer-it states here received 16/02/16

Question- look at AA 10(i), AA 10 (ii), AA 11 (a), in that doc you signed as GM.

Answer -Yes

– The mentioned docs were minuted to me by CW1

– These docs were minuted to me after Exhibit AA25

– The letters written to me were written by the CW1 but not in his capacity as quarry manager.

Question- On Exhibit AA4-AA25, the last correspondence was on 14/01/16

Answer – Yes

The law is that facts admitted need no further proof. See the case of CPC V. Lado [2011] 8 NWLR (pt.1266) 40 at 91. See also section 168 (1) of the Evidence Act, 2011.

The Claimant tendered all official communication between himself and DW1 and on behalf of the Defendant during the period in contention, this is proof that he was working for the Defendant during the specified time. The defendants did not deny this and even admitted during cross examination that there were official communication between them during the period, but not in the claimant’s capacity as Quarry manager, and according to the Defendant’s final written address, the claimant’s “……..act presupposes that the claimant chose to voluntarily work without pay”.

It is clear that the claimant rendered service to the defendant after his resignation for which he ought to have been remunerated, the quantum of remuneration is however not clear, but one thing is clear, as the adage goes “a labourer is entitled to his wages”, to deny him the remuneration for services rendered by him is not only wrongful but inhuman. This Court is a court of Law and Equity. See section 14 of the National Industrial Court Act, 2006 which provides that

“The Court shall, in the exercise of the jurisdiction vested in it by or under this act in every cause or matter, have the power to grant, either absolutely or such terms and conditions as the court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.”

Also section 15 of the Act provides that

“Subject to the express provisions of any other enactment, and in all matters not particularly mentioned in this act in which there was formerly or there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail in the court so far as the matters to which those rules relate are cognizable by the Court.”

Moreover the court, per Galinje J.C.A in Dauda v. Lagos Building Investment Company Ltd & Ors. [2010] LPELR-4024 (CA) explained how general damages is measured;

“The action for general damages is always available as of right when a contract has been broken. General damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the Defendant’s act, and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is qualified is by relying on what could be the opinion and judgment of a reasonable person in the circumstances of the case. See Gari v. Seirafina (Nig) ltd [2008] 2 NWLR (Pt.1070) 1 at 19 A-C; Famojiro v. Otamu [1955-56] NNLR 67; Osuji v. Isiocha [1989] 3 NWLR (Pt.111) 623 at 636 paragraph C-D; Odulaja v. Haddad [1973] 11 S.C357 at 360”

On the above premise, I hold that the claimant having worked for the defendant between the month of January 2015 – January 2016 without any remuneration whatsoever, is entitled to damages, and I hereby award a sum of N1,000,000.00K (one million naira) as general damages against the Defendant in favour of the Claimant.

The Claimant’s case therefore succeed in part, and for the avoidance of doubt I declare and order as follows;

That Exhibit AA25 (Letter of Resignation dated 24^th November, 2014) is a valid letter of resignation.
That the Claimant’s claim for his salary for thirteen (13) months from January, 2015 to January 2016 based on N190,000,00K per month and the total sum of Two Million, Four Hundred and Seventy Thousand Naira, representing his salary for the thirteen (13) months fails.
The Defendant is hereby ordered to pay a sum of One Million Naira (N1,000,000.00) as general damages in favour of the Claimant.
The sum awarded in this judgment is to be paid within 30 days from the date of this judgment, failing which 10% (ten per cent) interest is to be paid on the judgment sum until same is finally liquidated.

No order as to cost.

Judgment is accordingly entered.

Hon. Justice A. A. Adewemimo

Judge