IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE UYO JUDICIAL DIVISION
HOLDEN AT UYO
BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI
DATE: 24TH OCTOBER, 2018 SUIT NO: NICN/UY/27/2017
BETWEEN:
MR. DONALD ENOBONG MICAH ……………………CLAIMANT
AND
ECOBANK NIGERIA LIMITED ………………………DEFENDANT
REPRESENTATION:
Christopher Ekpo for the Claimants.
I. S. Ibe-Bassey for the Defendant.
JUDGMENT
On 17th May, 2017, the claimant took out an originating summons against the defendant pursuant to Order 3 Rules 1 (1 ) (b) (c), 2 (2) (a) & 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and the inherent jurisdiction of this court.
The facts leading to this case as deposed to in the affidavits of the parties are not in dispute. The Claimant was a staff of the Defendant at its Uyo office. The Claimant tendered a letter of resignation dated 18th September, 2017 notifying the Defendant of his “resignation of my employment with this great institution effective October 18th 2017 with this letter serving as my one-month of notice of resignation.” On the 29th September, 2017, the Defendant refused to accept the resignation informing the Claimant that since he was implicated in a matter awaiting the deliberation of its Disciplinary Committee, to which he will be invited to give an insight on the matter, his resignation was unacceptable. Accordingly, the Claimant was invited to appear before the Disciplinary Committee on the 13th October, 2017. With this, the die is cast. The Claimant maintains that he was no more in the employment of the Defendant and therefore not subject to any disciplinary measure. The Defendant insists that until the effective date of his resignation which would be the 18th October, 2017, the Claimant was still its staff and subject to its disciplinary control.
It was this state of affairs that led the Claimant to challenge the position of the Defendant by taking out originating summons and praying for the following reliefs:
1. A declaration that the Defendant’s letter of September 29, 2017 rejecting the Claimant’s Resignation of employment is ultra vires, illegal, unconstitutional and of no effect whatsoever.
2. A declaration that the Claimant seized to be in the employment of the Defendant effectively from the date of his resignation letter of the 18th September, 2017 and from thence ousted the employment jurisdiction of the Defendant over him.
3. An order of injunction restraining the Defendant, their agents, privies or assigns from constituting any Disciplinary Committee to look into the conduct of the Claimant, while he was in the Defendant’s employment or to invite the Claimant for any such Disciplinary Committee sitting.
4. And for such further orders or reliefs as this Honourable Court may deem fit to make in the circumstances.
In support of the Originating Summons, the Claimant filed a five (5) paragraphs affidavit deposed to by Edidiong Ndon with five (5) documents as Exhibits A-E namely:
| i) | Exhibit A
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Resignation of Employment dated 18th September, 2017 by the Claimant.
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| ii) | Exhibit B | Defendant’s letter of September 29, 2017 rejecting the resignation of the Claimant.
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| iii) | Exhibit C | Email invitations by the Defendant to the Claimant to attend the Disciplinary Committee sitting.
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| iv) | Exhibit D | Victor Iyanam & Co’s letter of 13th October, 2017 addressed to the Defendant on behalf of the Claimant.
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| v) | Exhibit E | Defendant’s reply dated 16th October, 2017 to Victor Iyanam & Co.’s letter of 13th October, 2017. |
In accordance with the rules of this court, the Claimant also filed a written address settled by Chief Victor Iyanam. In its reaction and with the leave of court, the Defendant filed a six (6) paragraphs counter-affidavit opposing the originating summons deposed to by Victoria Akpan with the Claimant’s Resignation Letter of 18th September, 2017 and the Human Resources Policies and Procedures, 2016 as Exhibits A and B respectively. Other Exhibits supporting the counter-affidavit included Defendant’s letter of September 29, 2017 rejecting the resignation of the Claimant (Exhibit C) and Defendant’s reply dated 16th October, 2017 to Victor Iyanam & Co’s letter of 13th October, 2017 (Exhibit D). A written address in opposition to the originating summons settled by Inyene Ibe-Bassey was also filed for the Defendant on 22nd November, 2017. The Claimant had course to, with leave of court, to file further and better affidavit and a rejoinder settled by Chief Victor Iyanam. With these processes in place, the parties adopted their written addresses on 10th October, 2018.
CLAIMANTS’ SUBMISSIONS IN SUPPORT OF THE ORIGINATING SUMMONS
The Claimants framed a lone issue for determination by this Court, to wit:
“Whether the Defendant did not act ultra vires, illegally and unconstitutionally and therefore of no effect whatsoever, when it rejected the resignation letter of the Claimant of the 18th September, 2017 and continued to act or treat the Claimant as though the Claimant was still in defendant’s employment; against the Claimant’s will and subject to defendant’s disciplinary procedures.”
The Claimant submitted that the letter of resignation of the Claimant is sacrosanct and serves as an effective instrument of disengagement from the employment of the Defendant the moment it was received by the Defendant, without more. Claimant’s Counsel proffered the following standpoints to reinforce his position and argument:
a) The fact that the resignation letter emanating from the Claimant to the Defendant was received.
b) The fact that the Claimant has physically left the employment of the Defendant and is not available any longer in Nigeria.
c) All the exhibits point to a clear severance between Claimant and Defendant.
d) The relationship between an employee and an employer cannot be foisted upon the respective parties against their will.
The Claimant went on to state that it was long established that the letter of resignation takes immediate effect referring to the case of WAEC v. Oshionebo (2006) 12 NWLR (Pt. 994), CA). He also maintained that the resignation letter does not depend on the date of acceptance to be effective but on the date the letter was received citing Sunday v. Olugbenga & Ors. (without citation).
Claimant then posed a question that having established the effective date of resignation as the date of receipt of the letter, can the employer still have jurisdiction over the former employee without his consent and answered the question in the negative. To him, it would be ultra vires the power of the former employer to continue to lord it over a former employee.
By way of conclusion, the Claimant submitted that the right of the defendant over a former employee came to an end on receipt of the letter of resignation as the Defendant had no further control over the Claimant thereafter. The insistence of the defendant on carrying out Disciplinary Committee hearing was therefore a puerile endeavour and totally ineffectual. To claimant, he is only liable to the ordinary laws of the land and can only be indicted by the law enforcement agencies.
In the circumstance, the court was urged to grant all the reliefs as sought by the Claimant.
DEFENDANTS’ SUBMISSIONS IN OPPOSITION TO THE ORIGINATING SUMMONS
In the Written Address submitted in support of the Counter Affidavit against the Originating Summons, the Defendant distilled two (2) issues for determination:
i. Whether as at 18th September, 2017, when the Claimant tendered his resignation letter, being his one month’s notice in lieu of resignation to the Defendant, and the time the Defendant invited the Claimant to appear before its Disciplinary Committee, he was still within the employ of the Defendant to convey vires on the Defendant to direct the Claimant to appear before its Disciplinary Committee in a matter in which he was implicated.
ii. Whether the subject suit is premature having been filed while the Claimant’s employment with the Defendant was still subsisting.
Defendant’s Issue 1:
The Defendant submitted that in the case of Apena & Anor v. Aileru & Anor (2014) Vol. 6-7 MJSC (pt. II) AT P. 184 (at page 206-207 para G-8), Okoro, JSC stated thus:
“The law is elementary that the burden of proof is on the party who alleges the existence of any fact. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The burden of proof in civil suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 131-133, Evidence Act.”
The Defendant’s went on to argue that the letter of 18th September, 2017 was ineffective, until 18th October, 2017 and noted that the claimant had in his said letter acknowledged this fact when he stated in paragraph 1 of the said letter that:
“I write to notify you of my resignation of my employment with this great institution, effective October 18, 2017, with this letter serving as my one month in-lieu of notice of resignation.”
The Defendant further cited the cases of Ngo v. Green (2015) 7 NWLR (Pt. 1459) 598, Dauda v. L.B.I. Co. Ltd. (2011)5 NWLR (Pt. 1241) 411, F.B.N. PLC v. Asawari (2015) 9 NWLR (Pt. 1463)182 and A.P.C v. I.N.E.C. (2015) 8 NWLR (Pt. 1462) 531 to the effect that facts deposed to by a party and admitted by an opponent required no further proof from the party who made the deposition.
Similarly, it is the submission of the Defendant that an admission by a party against his interest is the best evidence in favour of his adversary and it is immaterial whether the admission was made orally or in a document. See Ejimadu v. Delta Freeze Ltd. (2007)13 NWLR Pt 1050 P.96 PP.110 Paras. E- F. and Akwara v. I.B.W.A Ltd. (2001)7 NWLR Pt. 711 P.133 P.145 Para. G, where the Court of Appeal per Pats-Acholonu, JCA held:
“Where a party had made oral or written statements adverse to his contention, it is admissible in evidence in subsequent proceeding as facts against his interest.”
Thereafter, the Defendant posed some questions: was the Claimant entitled to continue to work after he had given his one month notice in-lieu of resignation? If he was entitled to work for the one month notice in-lieu of resignation, was the Defendant no longer his employer such that it could direct the Claimant to appear before a Disciplinary Committee in a matter in which he was said to have been involved and implicated? Why is the Claimant afraid of the Disciplinary Committee if his hands were as clean as he would want the Court to believe? Has the Claimant placed sufficient facts before the Court to entitle him to the reliefs he is now seeking?
In answering some of these posers, the Defendant informed the court that the Claimant’s resignation letter was addressed to “The Managing Director, Ecobank Nigeria Limited”. This was in breach of the Defendant’s Human Resources Policies and Procedures, 2016. The Defendant was therefore right to have rejected the Claimant’s purported resignation letter, having been addressed to a wrong authority contrary to the extant provisions of the Defendant’s Human Resources Policies and Procedures, 2016. To buttressed this, the Defendant quoted page 217, paragraph 11.3.3 (2) of the Defendant’s Human Resources Policies and Procedures, December, 2016, Exhibit ‘B’:
“When leaving Ecobank, employees are required to give one month’s notice, or one month basic salary in lieu of notice and in the case of Group Management and Executive staff, three months’ notice shall be required unless the employee’s terms and conditions of employment or local law stipulate another minimum notice period. This notice should be in writing and sent through the employee’s supervisor to the Head of Human Resources.”
To this end, the Defendant cited the case of Western Nigeria Development Corporation v. Abimbola (1996) NSCC 172, and submitted that the Supreme Court held that where there is a written or documented contract of service the Court will not look outside the terms stipulated there in deciding the right and obligations of the parties. See also Katto v. CBN (1999) 6 NWLR (pt. 607) 390.
The Defendant also reiterated that having admitted that his resignation was to be effective from 18th October, 2017, the Claimant was indeed still in the employ of the Defendant and accordingly, the Defendant was right and had the vires to invite the Claimant to appear before its Disciplinary Committee to explain his role in respect of breach of confidentiality.
On the basis of the foregoing, the court was urged to resolve this issue in favour of the Defendant and dismiss this Suit in its entirety for lacking in merit.
Defendant’s Issue 11:
Whether the subject suit is premature having been filed while the Claimant’s employment with the Defendant was still subsisting.
In arguing this issue, the Defendant adopted and relied on his arguments in respect of issue 1 and further contended that when the claimant’s case is juxtaposed with the case of the Defendant, it would lead to an irresistible conclusion that the Claimant’s case is indeed premature.
According the Defendant, a cursory look at the Originating Summons would reveal that this Suit was filed while the Claimant was still in the employ of the Defendant and therefore premature. It is the submission of learned counsel that the precondition for an effective determination of employment is the effective date of resignation, being 18th October, 2017.
The Defendant posited that in Ainabebolo v. E. S. U. W. F. M. C. S. Ltd (2007) All FWLR (Pt.366) 713 at 734 para E, the Court of Appeal held:
“where a party fails to satisfy a condition precedent to the institution of an action, the action instituted by the party is premature and consequently incompetent”.
In the same vein, the Defendant cited the cases of Adesola v. Abidoye (1999) NSCQR 416; Umaru v. Abdul-Mutallab(1998) 11 NWLR (Pt.537) 247 and William & Anor. v. Udofia & Ors. (2016) LPELR 41358 (CA), in which the Court of Appeal, held:
“The issue raised and argued here goes to jurisdiction and challenges the very foundation of the entire adjudicatory process, where a regulatory statute prescribes a mode of redress, it is unacceptable for parties to approach the court without exhausting the avenues prescribed under the said law. As such premature approach will render such an action incompetent and deprive the court of the necessary jurisdiction”.
In conclusion, the Defendant having noted that the claimant’s resignation was ineffective until 18th October, 2017 because the Defendant had the power to have directed the Claimant to appear before a Disciplinary Committee and that the suit is premature by filing same while the Claimant was still in the employ of the Defendant, urged the court to dismiss the suit with substantial cost for being premature, pre-emptive and speculative with intend to annoy the Defendant.
CLAIMANTS’ REPLY ON POINTS OF LAW
By way of reply on point of law, the Claimant responded to the two (2) issues for determination as advanced by the Defendant on the 19th February, 2018.
The Claimant attacked defendant’s issue one (1), saying that the Defendant is not entitled to raise issues for determination since it was not the aggrieved party and the defendant was merely entitled to respond to the issues raised by the Claimant. He further posited that the purpose of “Issues for Determination” is to narrow down issues in the interest of accuracy, identity and brevity referring to Odeleye & Ors. v. Adepega & Ors (2000) LPELR-6799(CA); Danfulani v. Shekari (1996) 2 NWLR (Pt.433), Adewunmi v. AG, Ondo State (1996) 8 NWLR (Pt. 464) 73, Onwo v. Oka (1996) 6 NWLR (Pt. 456) 584. He forcefully argued that a defendant has no business in raising issues for determination on his own in Originating Summons proceedings and that the Claimant must be allowed to swim or sink on the basis of issues formulated by him. Since this is the purport of the case of Kola v. NPF & Ors. (2018) LPELR-43635 (CA), it is therefore the submission of Claimant that the issues and arguments advanced by the Defendant should be discountenanced.
On the effective date of resignation, the Claimant strongly argued that it is now beyond conjecture and contrary to the posturing of the defendant, that the date of receipt of the resignation letter is the effective date of resignation. In support of this proposition of the law, the Claimant quoted extensively from the case of Sunday v. Olugbenga & Ors. (2008) LPELR-4995(CA) thus:
“It is clear to me that a notice of resignation is effective, not from the date of the letter or from the date of the purported acceptance, but from the date the letter was received by the employer or his agent. Refer to W.A.E.C. v. Oshionebo (2006) 12 NWLR (Pt. 994) 258. Put bluntly, resignation takes effect from the date notice is received by the employer or its agent. See Adefemi v. Abegunde (supra) at p. 28. In Benson v. Onitiri (supra), Ademola, OF (as then called) pronounced as follows: “Further, it is clear on the authority of Riodan v. The War Office (1959) 3 All E.R 522, 588 that resignation dates from the date notice was received. There is absolute power to resign and no discretion to refuse to accept notice. In the present case, I do not think it matters to whom the notice of resignation was addressed, whether to the Minister who made the appointment or to the Board, on which Benson was serving … I am of the view that notice of resignation to either of them is good, nor do I think it necessary for the Board or anybody else to reply that the resignation is accepted.” 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 and the appellant’s common law right remains unfettered as the Lagos Town Planning Law was silent on resignation. The appellant was entitled to send his notice of resignation to LEDS, a Corporation which he was serving and which had right to receive it and since the LEDS sent a copy thereof to the Ministry and the Permanent Secretary dealt with it, notice to the permanent Secretary is notice to the Minister since it is a matter not requiring the exercise of the Minister’s personal discretion. The effective date of resignation was when the Permanent Secretary in the absence of the Minister accepted the notice of resignation and considered and treated the appellant as having resigned.” per FABIYI, J.C.A.(Pp.10-11, paras, E-G).
To the Claimant the issue of this suit being premature is a non-issue. He asserted that a legitimate question has been submitted for the determination of this Court and recognised that the right to approach this court is the exercise of a constitutional rights and cannot be curtailed under any guise.
In conclusion, Claimant noted that fortunately, the Defendant has not cited any authority for the strange proposition that the suit is premature and urged the court to deliver the Claimant from the oppressive tendencies of the Defendant by granting all the reliefs.
DECISION OF THE COURT
I have examined the originating summons and all the other processes filed in this suit, especially the arguments of the parties and it seems to me that the issues to be decided are the effective date of the resignation by the Claimant and the legal status of the Defendant’s letter of rejection thereof. Answers to these two questions will determine if the Claimant is entitled to the reliefs sought.
Before doing this, there is the need to resolve the invitation by the Claimant in his rejoinder dated 19th February, 2018 for the court to discountenance the two issues raised for determination by the Defendant in its written address dated 22nd November, 2017. For clarity, the two issues are reproduced:
i. Whether as at 18th September, 2017, when the Claimant tendered his resignation letter, being his one month’s notice in lieu of resignation to the Defendant, and the time the Defendant invited the Claimant to appear before its Disciplinary Committee, he was still within the employ of the Defendant to convey vires on the Defendant to direct the Claimant to appear before its Disciplinary Committee in a matter in which he was implicated.
ii. Whether the subject suit is premature having been filed while the Claimant’s employment with the Defendant was still subsisting.
The Claimant wanted the court to discountenance these issues because in an originating summons, as this one, the Defendant has no business to distil issues for determination as it was not the aggrieved party and the Claimant must be allowed to swim or sink on the issues formulated by him. The case of Kolo v. NPF & Ors (2018) LPELR-43635 (CA) was cited to buttress this position. I have looked for this case on line to no avail. This might well be the law. But I have to decline this invitation for the simple fact that, as a court of first instance, this court is enjoined by several Supreme Court cases to consider all issues properly before it. The rationale is to guard against infringement of the fair hearing principle and to give the appellate court the benefit of the findings by the lower court. See Marine Management v. N.M.A (2012) 12 S.C.N.J. 150, Ovunwo v. Woko (2011) 6 S.C.N.J 137-138, African International v. Integrated (2012) 5 S.C.N.J. 264, Ifeayi Chukwu v. Soleh Boneh (2000) 3 S.C.N.J. 38-39 and Uzuda v. Ebigah (2009) 7 S.C.N.J. 172 to mention but a few.
I am therefore duty bound to consider the issues put forward by the Defendant. Issue no. 1 is subsumed with the issue formulated by Claimant and would be treated together. As for the second issue, which attacked this suit for being premature, I must say, is totally misconceived. Not only did, the Defendant not cite any authority for this strange proposition but also failed to bring this suit within the principles in the case of Ainabebolo v. E.S.U.W.F.C.S. Ltd (2007) All FWLR (Pt. 366) 713 para E regarding failure to satisfy a condition precedent to the institution of this suit. I therefore entirely agree with the Claimant’s Counsel that the right of the Claimant to approach this court is a constitutional one which cannot be curtailed. This issue is resolved against the Defendant.
The coast is now clear for the resolution of the issues in this case, which is the effective date of the Claimant’s resignation dated 18th September, 2017 and validity of the Defendant’s rejection letter of 29th September, 2017. It is therefore imperative to recapitulate the facts of this case which is not in dispute at all.
The Claimant tendered his letter of resignation dated 18th September, 2017 notifying the Defendant of his resignation “effective October 18th, 2017 with this letter serving as my one-month in-lieu of notice of resignation.” That is Exhibit A. The Defendant by a letter dated 29th September, 2017 refused to accept the resignation informing the Claimant that he was implicated in a matter awaiting hearing by the Defendant’s Disciplinary Committee. That is Exhibit B. On 6th October, 2017, the Defendant also sent the Claimant an invitation to appear before the Disciplinary Committee on the 13th October, 2017 vide email. That is Exhibit C. On the same date, that is on 13th October, 2017, Counsel to the Claimant replied the Defendant refusing to submit to its disciplinary control because the Claimant was no more a staff having resigned on 18th September, 2017. That is Exhibit D. On 16th October, 2017, the Defendant replied Counsel to the Claimant insisting that his client, whose resignation is not effective until 18th October, 2017 was still a staff and therefore subject to its disciplinary procedures. That is Exhibit E. To complete the list of Exhibits, the Defendant annexed Human Resources Policies and Procedures of the Defendant to its Counter-Affidavit as Exhibit B.
To the Defendant, the Claimant having admitted that his resignation was effective from 18th October, 2017, he was still in the employ of the Defendant and therefore the Defendant had the vires to invite him to appear before its Disciplinary Committee to explain his role in the allegation of breach of confidentiality levelled against him. According to the Defendant, facts admitted need no further proof citing a number of cases including Ngo v. Green (2015) 7 NWLR (Pt. 1459) 598 and FBN Plc v. Asawari (2015) 9 NWLR (Pt. 1463) 182 among others. The Defendant also submitted that admission against interest is the best evidence citing the case of Ejimadu v. Delta Freeze Ltd (2007) 13 NWLR (pt. 1050) 96 at 110, para E-F. While noting that I don’t have the benefit of a response from the Claimant on this issue because issue cropped up in a reply, I beg to disagree with the position of the Defendant. My understanding of the facts of this case is that the Claimant is not denying that he did say that the effective day of his resignation was 18th October, 2017. His argument is that in law, the effective date of his resignation is 18th September, 2017, the date of the said letter. In any case, it is my considered view that this case is not one to be decided on the basis of admission per se. See the case of Nwaogu v. Atuma (2013) 1 S.C.N.J. 232, where it was held that admission cannot be relied on in the determination of rights and obligations of parties in legal proceedings.
Now, to the crux of this matter, what is the effective date of the Claimant’s resignation and the validity of the Defendant’s rejection of same and insistence to subject the Claimant to its disciplinary procedures? The Claimant prayed for two (2) declarations:
i. A declaration that the Defendant’s letter of September 29, 2017 rejecting the Claimant’s Resignation of employment is ultra vires, illegal, unconstitutional and of no effect whatsoever.
ii. A declaration that the Claimant seized to be in the employment of the Defendant effectively from the date of his resignation letter of the 18th September, 2017 and from thence ousted the employment jurisdiction of the Defendant over him.
But in the Claimant’s written address of 16th October, 2017 and Rejoinder of 19th February, 2018, the Claimant argued that the effective date of Claimant’s resignation is on the receipt of the letter.
In his bid to justify the grant of the above reliefs, Claimant quoted extensively from the case of Sunday v. Olugbenga & Ors. (2008) LPELR-4995 (CA), reproduced at page 7-8 of this judgment. This case has the advantage of referring to at least three (3) important cases on this subject. These are Benson v. Onitiri (1966) NNCC 52, WAEC v. Oshionebo (2006) 12 NWLR (Pt. 994) 258 and Adefemi v. Abegunde (2004) 15 NWLR (Pt. 895) 28. It is not out of place to try and bring out postulations of these cases to see if they can assist in the resolution of the instant case. The tenor of Benson v. Onitiri (supra), is that every employee has the right to resign his appointment whenever he so desires and the resignation is effective in law even when the employer does not expressly accept it. In WAEC v. Oshionebo (supra), the gist is best captured by Aderemi, J.C.A. in the following words:
“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. Tendering of a letter or resignation carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer.”
In Adefemi v. Abegunde (supra), his lordship Onnoghen, J.C.A (as he then was now CJN) posed a pertinent question against rejection of resignation and answered thus:
“The question is if resignation will only become effective after acceptance, will the payment of salary in lieu of notice of resignation for the stated months be effective resignation after the expiration of the months for which the salary in lieu was paid? I don’t think so.”
The above cases all seem to support the position of the Claimant both in terms of the effective date of his resignation as well as the validity of rejection thereof. Can this therefore be a complete answer to the case at hand? I think not. I don’t think these cases have given iron-clad guarantees or principles that an employment stands determined the day the employer receives the notice of resignation in all cases irrespective of the facts therein. After all, a case is decided on the facts presented to the court and not in vacuum, as rightly pointed out in the Supreme Court case of Idoniboye-Obe v. NNPC (2003) 1 S.C.N.J. 124-125, per Niki Tobi, JSC.
A close look at the facts of this case will show that in some aspects the cases are of little assistance to the Claimant. While one of the reliefs claimed by the Claimant is that 18th September, 2017 should be declared the effective date of his resignation, the cases are to the effect that the effective date shall be on the receipt of the resignation letter. The Claimant did not tell us the date of the receipt of the letter of resignation to come within the dictates of these cases.
Again, the cases cited by the Claimant did not down play the role of notice period in the determination of employment. In fact it was noted by Onnoghen, JCA (as he then was now CJN) in Adefemi v. Abegunde (supra) “that resignation is by the giving of the required length of notice or payment in lieu of notice.” The law is also where the length of notice is given in accordance with the terms of the contract, parties are bound by it and the court will uphold the agreement. See the case of Sona Breweries Plc v. Sir Shino Peters & Anor (2005) 1 NWLR (Pt. 908) 478 at 479. In the present case, the Claimant wrote the resignation letter on the 18th September, 2017 and giving 18th October, 2017 as the effective date of his resignation. This is a One Month’s notice as required of him by Paragraph 11.3.3 (2), Page 217 of the Defendant’s Human Resources Policies and Procedures (Exhibit B of the Counter-Affidavit).
Not only that the choice of giving notice of resignation instead of payment in lieu of notice, as in the instant case, is not without its legal implications. It means the employee is still in employment until the expiration of the notice period and is therefore subject all the rules and regulation of the employer. The Supreme Court case of Rufus Femi Amokeodo v. IGP (1999) 6 NWLR (PT.607) 467; (1999) 5 SC (PT.11) 1, is instructive:
“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 effective date of resignation given in Exhibit A is 18th October, 2017, it means that the Claimant was still in the employment of the Defendant and subject to its disciplinary procedures and I so hold. I am persuaded in this stance by the recent judgments of my learned brothers Amadi, J and Damluk, J in the cases of Mrs Uduak Yemi-Eweka v. Nigeria Bottling Company Limited & 5 Ors (SUIT NO. NICN/LA/458/2013 and Dr. Alafiyatayo Akinola v. Waziri Umaru Federal Polytechnic (SUIT NO.NICN/SK/03/2018) respectively.
Now this leaves us with whether the Defendant can reject the resignation as it sought to do in Exhibit B. The general rule is that there is absolute power to resign and no discretion to refuse to accept and it is not necessary to reply that the resignation is accepted. See Yesufu v. Gov. of Edo State (2001) 13 NWLR (Pt. 731) 517. But there notable exceptions and I am convinced the case at hand comes within this exception. Upon the receipt of the letter of resignation by the Claimant, the Defendant in rejecting same informed the Claimant that he was implicated in a matter awaiting the Defendant’s Disciplinary Committee. The Defendant also invited the Claimant to appear before the Disciplinary Committee to clear his name. So to me the purported resignation of the Claimant, was a ploy to pre-empt the investigation and the Defendant has the right to place the resignation on hold. I am fortified in this regard by the case of Graham-Douglas v. AG, Rivers State (1973) NMLR 77, where it was held that an employer may reject a letter of resignation on the ground that an employee has questions to answer and permitting him to go may hinder on-going investigations. The case of UCTH & Anor v. Bassey (2008) LPELR-8553(CA) put the issue beyond reproach:
“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…”
In all and for the reasons advanced, the Claimant’s suit is lacking in merit and is hereby dismissed.
I make no order as to cost.
Judgment entered accordingly.
………………………………………
HON. JUSTICE M. A. NAMTARI
