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National Industrial Court

MR FOLARIN BAKARE VS LAGOS BUILDING INVESTMENT COMPANY

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

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

DATE:  MONDAY 19TH NOVEMBER 2018

 SUIT NO. NICN/LA/626/2016

BETWEEN:

MR FOLARIN BAKARE                                                       

           

CLAIMANT

 

AND

LAGOS BUILDING INVESTMENT COMPANY PLC               

 

DEFENDANT

Representation:

  1. Salihu, with O. Akinkumi appear for the Claimant

Kayode Oseni, with I.C. Ugwu appear for the Defendant

 

JUDGMENT

The Claimant commenced this action against the Defendant by a General Form of Compliant dated and filed on 17th October 2016, together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s Witness Statement on Oath, Verifying Affidavit, List of Documents; all dated the same 17th October 2016 and copies of all the documents to be relied on by the Claimant at the trial of the suit. The Claimant claims the following reliefs against the Defendant:

  1. A DECLARATION of this Honourable Court that the actions of the Defendant amount to constructive dismissal of the Claimant and accordingly constitute a wrongful termination of the Claimant’s employment.
  2. DAMAGES in the sum of N353,000.00 (Three Hundred and Fifty Three Thousand Naira) being one month’s salary in lieu of notice for wrongful termination of the Claimant’s employment.

iii.                A DECLARATION of this Honourable Court that the words complained of in paragraph 13 above constitutes a defamatory publication and thus amounts to a libel published of the Claimant.

  1. DAMAGES in the sum of N25,000,000.00 (Twenty Five Million Naira) for injury to reputation suffered by the Claimant as a result of the libellous publication to First Bank of Nigeria Plc. and other banks.
  2. AN ORDER of this Honourable Court directing the Defendant to retract or cause to be retracted, the said defamatory words and tender an unreserved apology in the form and manner prescribed by the Solicitor’s to the Claimant.
  3. SOLICITOR’S FEES and costs of this action assessed in the sum of N5,000,000.00 (Five Million Naira).

 

In response to the claim, the Defendant filed its Statement of Defence on 25th April  2017 together with a List of Defendant’s Witnesses and Defendant’s Witness Statement on Oath deposed to by Olusina Dipe, List of Documents and copies of the documents to be relied on at the trial.   Defendant counter-claimed as follows:

  1. A declaration that the Claimant having failed to give the requisite notice of resignation is in breach of the contract of employment between the Claimant and the Defendant as contained in the company handbook
  2. Nl0,000,000 (Ten Million Naira Only) as general damages for breach of contract
  3. N2,000,000 (Two Million Naira Only) for Solicitor’s fees

In response to the Defendant’s Statement of Defence and Counter-claim,  the Claimant filed his Reply to the Statement of Defence and Defence to Counter-claim on 28th August 2017.

Trial commenced in the suit on 16th January 2018 and was concluded on 9th April 2018.  The Claimant gave evidence for himself as CW1, by adopting his Witness Statements on Oath deposed to on 17th October 2017 and 28th August 2017.  The Claimant was thereafter cross-examined.  During the examination in chief, the Claimant tendered in evidence the following documents:

  1. Exhibit C1 – Claimant’s Letter of Employment dated 14th January, 2009
  2. Exhibit C2 – Defendant’s Employee Handbook
  3. Exhibit C3 – Claimant’s Letter of Resignation dated 18th July, 2016
  4. Exhibit C4 – Defendant’s letter dated 20th July 2016
  5. Exhibit C5 – Claimant’s Letter dated 27th July 2016
  6. Exhibit C6 – Defendant’s letters of 12th July 2016 to First Bank Plc., Access Bank Plc., UBA Plc. and Keystone Bank.

  1. Exhibit C7 – CBN approved organogram for the Defendant.

The Defendant’s Witness, Mr. Olusina Dipe gave evidence as DW by adopting his Witness Statement on Oath deposed to on 25th April 2017 and he was cross-examined accordingly. The Defendant tendered in evidence the following documents:

  1. Exhibit D1 – Letter dated 19th April, 2016 from Defendant addressed to Claimant.
  2. Exhibit D2 – Reply letter dated 21st April, 2016 from Claimant addressed to Defendant.
  3. Exhibit D3 – Application form for annual leave.
  4. Exhibit D4 – Letter dated 9th June, 2016 for approval of annual leave.
  5. Exhibit D5 – Letter dated 14th July, 2016 from Primrose Specialist Hospital to the Defendant.
  6. Exhibit D6 – Letter of Resignation dated 18th July, 2016.
  7. Exhibit D7 – Letter dated 20th July, 2016 from Defendant to Claimant.
  8. Exhibit D8 – Letter dated 25th August, 2016 from Defendant to Claimant with reference to resignation.
  9. Exhibit D9 – Letter dated 29th August, 2016 from Claimant’s Solicitor to the Defendant

At the end of trial, the Court ordered the parties to file their respective final written addresses.   The Final Written Addresses were adopted on 15th October 2018 and the Court adjourned for judgment.

CASE OF THE CLAIMANT

The Claimant is a banker formerly in the employment of the Defendant; a Mortgage Bank.  It is Claimant’s case that he commenced his employment with the Defendant, as an Assistant General Manager pursuant to a Letter of Employment dated 14th January 2009. Over the years, the Claimant rose through the ranks and at the material time to this suit, the Claimant was the Deputy General Manager, Mortgages and Estates in the Defendant Company. Sometime in June 2016, there was a change in the management of the Defendant as a result of which a new Managing Director was appointed. The Claimant immediately noted that the new Managing Director had an abrasive and unusually unfriendly style of management. A few weeks into the tenure of the new Managing Director and for reasons unknown to the Claimant, the said new Managing Director directed the Claimant to vacate his office space in the Defendant Company. This instruction was to be carried out under a strict timeline of a few hours. The Claimant was also directed to remove both official and personal effects from the office space; a room he had occupied for over 7 years without provision of an alternative space. The Claimant became a subject of ridicule in the organisation.  This marked the first of the Defendant’s harsh conduct towards the Claimant. The work environment subsequently became so hostile that the Claimant was compelled to resort to working from his car. In addition to the undue reallocation of his office space, the Claimant was assigned a new designation; Deputy General Manager (Special Duties). This designation is unknown to the organizational structure of the Defendant. It is without any ascertainable job description, scope of duties and responsibilities. As a result of the upheaval and turmoil consistently meted to the Claimant by the management of the Defendant, the Claimant applied to proceed on vacation. While on vacation, the Claimant by a letter of 18th July, 2016 resigned from the employment of the Defendant. The resignation was to be with immediate effect from the date of the letter.  By a letter of 20th July, 2016, the Managing Director of the Defendant rejected the Claimant’s resignation citing the existence of cases to answer by the Claimant as the reason for the rejection.  In his detailed reaction to the Managing Director’s rejection of his resignation, the Claimant by a letter dated 27th July 2016 expressed his inability to continue to work in the Defendant in light of the way in which he had been treated by the Defendant. He however informed the Defendant of his willingness to address any issues and charges as may be levied against him from home. It is Claimant’s case that his resignation was as a result of the Defendant’s creation of a hostile work environment and in direct response to the Defendant’s breach of the terms of the Claimant’s contract of employment as contained in the Defendant’s Employee Handbook. The Claimant states that given that his termination of the contract of employment was due to the Defendant’s conduct, the termination constitutes a dismissal. The Claimant avers that the Defendant’s conduct is in breach of the implied term of mutual trust and confidence intended to be included in all contracts of employment. By isolating and humiliating the Claimant, Claimant avers that the Defendant has breached its obligation to refrain from conducting itself in a manner that is likely to destroy or seriously damage the relationship of trust and confidence between an employer and employee. In addition to the wrongful termination of the Claimant’s employment, on or about the 12th July 2016, the Defendant wrote and published or caused to be written and published the following words in a typewritten letter which are defamatory of the Claimant:

Please be informed that the name below is no longer a signatory to Lagos Building Investment Company Plc. bank account and therefore cease to carry out transactions relating to the company’s account in your bank.

NAME                                                      DESIGNATION

FOLARIN BAKARE                              DEPUTY GENERAL MANAGER ‘B’

Please be guided accordingly.

Defendant’s letter of 12th July, 2016 was then sent to several banks including First Bank of Nigeria Plc., UBA Plc., Access Bank Plc. and Keystone Bank. At all material times, the Defendant knew that the letters were likely to be opened and read by employees of the said banks. The Claimant avers that the letters to the banks were improper, false and accentuated by malice and bad faith in that the only organ vested with the powers to alter/remove signatories to the Defendant’s bank account is the Board of Directors. As of the time the letters were sent to the banks, there was no subsisting Board of Directors of the Defendant. In their natural and ordinary meaning, the said words meant and were understood to mean the Claimant was untrustworthy and of unsavoury personage.  The said words were calculated to disparage the Claimant in the standing of his professional colleagues in the banking sector and have the potential of occasioning great difficulty to the Claimant in advancing his career in the banking industry. As a direct consequence of the wrongful termination of the Claimant’s employment, and the libellous publication to the banks mentioned above, the Claimant has suffered distress and embarrassment.

CASE OF THE DEFENDANT

The case of the Defendant is that the Claimant’s observation on the Defendant’s style of management was a figment of his imagination and an exhibition of his paranoia in view of the fact that the Claimant had been under investigation which investigation started prior to the commencement of the tenure of the present Managing Director. The Defendant states that the Claimant was asked to vacate his office to enable painters and decorators work on the redesign of the office spaces, and that many offices and officers were affected only temporarily. Defendant states that the Claimant was a Deputy General Manager and resigned as such. The Claimant sent an application form for annual leave on the 9th June, 2016 to the Defendant which annual leave was approved same day for Claimant to proceed on 20days vacation from the 13th June, 2016. The application and approval of annual vacation was based on qualification for same and not based on any perceived hostility to Claimant.  The Claimant was supposed to resume work after his vacation by Monday the 11th day of July 2016 but failed to do so and failed to send any notice. The Claimant failed to report for work throughout the week commencing from Monday 11th day of July till Friday the 15th July, 2016. The Claimant was effectively away without official leave throughout that week without any notification whatsoever to the Defendant whereupon the Defendant did not derive any benefit from his contract. By Friday the 15th July 2016, the Claimant on or about 3pm sent in a letter purportedly from his hospital which letter together with its attachment both dated 14th July 2016 complained of his illness and giving 5days as probable days of duration of illness.

Following his said illness, the Claimant was away from work and was not available as a signatory to any cheque nor performed any assignment on behalf of the Defendant. By Monday the 18th July, 2016 , i.e. the week the Claimant is supposedly recuperating following his supposed illness, the Claimant forwarded his letter of resignation and had since refused to report for duty regardless of the rejection of his resignation in accordance with the terms of his contract. Defendant states that the Claimant abandoned work and sent an invalid resignation in breach of the contract of employment between the Claimant and Defendant. Claimant failed to give notice in accordance with the terms of employment which stipulates one month notice for officers in his rank; and there was an investigation pending against the Claimant. Defendant states that Claimant abandoned work in breach of the terms of employment contract as specified in the Company’s Handbook due to his apprehensions in his pending investigation as contained in the official query dated 19th April, 2017. The Defendant notified its bankers of the change of signatories to its account after Claimant who is a signatory to the account abandoned its contract of employment and refused to turn up for work even after the resignation was rejected. The Defendant denies making any defamatory statement and has no intention of making any defamatory statement in the notification to its bankers or at all. Defendant states that by its letter dated 25th August, 2017 it further demanded the resumption of the Claimant at work. Again, the Claimant refused and or neglected to comply with the contract of employment and continuously remained away from work without official leave.  The Claimant responded to the Defendant’s demand on him to resume work with a Solicitor’s letter dated 29th August, 201 7.

 

REPLY TO STATEMENT OF DEFENCE AND DEFENCE TO COUNTER – CLAIM

In response to the Statement of Defence and Counter-claim, the Claimant states that the Head of Human Resources was informed of his residential address at all times material to this suit. He states that he was expected to resume from his annual leave on the 11th July 2016, and denies that he absconded from work without official leave or notice or due information. Claimant states that as a result of his ill health, he was absent from work on the 11th July 2016 and duly informed the Managing Director of the Defendant accordingly. That, when his health did not improve, he requested his Doctor to so inform his employers and request an extension of his leave for the remainder of the week till the 15th July 2016.  Claimant states that he did not breach any component of his contract of employment with the Defendant.  He states that a query was issued to him by the Defendant on the 19th April 2016, which he responded to on 21st April 2016. And that, that was the last communication between the Claimant and the Defendant on the subject.  He states that his resignation was after a period of exactly three (3) months following the Defendant’s issuance of the aforesaid query and that the Defendant did not at any time during that 3 month period indicate that the Claimant’s response to the query was inadequate or unsatisfactory. The Claimant therefore had no reason to doubt the closure of the matters raised in the query particularly in view of the fact that other employees in similar situations whose responses to similar queries were deemed unsatisfactory were immediately suspended and dismissed from the Defendant’s employment.  Claimant states that he never at any time abandoned his contract of employment nor refused to turn up for work, instead, he was constructively dismissed given the actions of the Defendant hence the Claimant’s resignation. In Defence to the Counter-claim, Claimant states that the Defendant’s demand that he resume at work was made more than a month after the Claimant resigned from the employment of the Defendant. The Claimant resigned on 18th July, 2016 while the Defendant’s demand that he resume work was issued on 25th August, 2016. The Claimant contends that his resignation brought an end to the contractual relationship hitherto existing between the Claimant and the Defendant hence he was no longer obliged to accede to any demand made by the Defendant pursuant to the said contractual relationship.

SUBMISSION ON BEHALF OF THE DEFENDANT

The Defendant in its Final Written Address raised the following issues for determination:

  1. Whether the National Industrial Court has jurisdiction to determine Reliefs 3, 4 and 5 of the Plaintiffs’ Claims.
  2. Whether the words published by the Defendant to third party is defamatory.
  3. Whether there can be a wrongful termination of employment of a staff that was never served any letter of termination but admitted writing a letter of resignation and thereafter refused to report for work in spite of repeated demands for him to do so but proceeded to file a suit.
  4. Whether a plaintiff who failed to give the requisite notice of resignation is not in breach of the contract of employment.
  5. Whether the Defendant/CounterClaimant is entitled to damages for breach of employment contract by the plaintiff.

On Issue one, whether the National Industrial Court has jurisdiction to determine Reliefs 3, 4 and 5 of the plaintiffs’ Claims, Defendant argues that the reliefs as contained in paragraphs (iii), (iv), and (v) of the Statement of Facts are without doubt reliefs in tort; and that the National Industrial Court does not exercise jurisdiction in matters of such nature. He argues that the Court has been reluctant in expanding the frontiers of its jurisdiction when it comes to the matters “incidental thereto” argument. He refers to the case of Agnes Omeyi Adoga (Mrs ) & Ors v. Ameh Adoga Ors unreported Suit No: NICN /LA/15/2017; the ruling of which was delivered on the 24th May 2017.

 

On Issue two, whether the words published by the Defendant to third party is defamatory. Defendant argues that the test in determining whether the words complained of are defamatory is always that of a reasonable man. That is to say, given the environment and the circumstances in which the statements were made and published what would be the interpretation and understanding of a man of ordinary understanding – See Offoboche v. Ogoja Local Government (2001) FWLR (Pt. 68) .  Defendant submits that the interpretation given by the Claimant is unreasonable in the environment and that liability for defamation depends, not on the intention of the Defendant, the lack of authority of the Defendant or the action of the Defendant but on the actual words and facts of defamation.

On Issue Three, whether there can be a wrongful termination of the employment of a staff that was never served any letter of termination but admitted writing a letter of resignation and thereafter refused to report for work in spite of repeated demands for him to do so but proceeded to file a suit; Defendant argues that in termination of employment cases, a Claimant has the primary duty of placing before the Court the terms and conditions of the employment contract; to prove in what manner the said terms were breached by the employer. Defendant submits that the Claimant in this case actually filed and tendered the terms and conditions of his employment but failed to point out which of the terms or condition that was breached; rather he relied on constructive termination.

Issues four and five relate to the counterclaim of the Defendant.  It raises the issues whether the plaintiff who failed to give the requisite notice of resignation is not in breach of the contract of employment and whether the Defendant/Counter-Claimant is entitled to damages for breach of employment contract by the plaintiff. Defendant argues that the terms of employment contract as tendered by the Claimant is not in dispute and prescribes one month notice for a staff of Claimant’s rank.  Secondly, that the terms further specified the conditions for acceptance of resignation.

SUBMISSION ON BEHALF OF THE CLAIMANT

The Claimant in his Final Written Address raised the following issues for determination:

  1. Whether the Defendant’s conduct as set out in the evidence before this Honourable Court establishes the Claimant’s claim for constructive dismissal.
  2. Whether the Defendant’s letter of 12th July, 2016 contains defamatory wording and therefore constitutes a libellous publication against the Claimant.
  3. Whether the Defendant has placed sufficient evidence before this Honourable Court as to be entitled to the reliefs in its counterclaim.

On Issue A – Constructive Dismissal, Claimant submits that constructive dismissal should be imputed, where there has been a repudiatory breach of the terms of the contract of employment by the employer, which result in an immediate resignation (or notice of resignation) by the employee. He cites instances where a repudiatory breach of the contract of employment was inferred.  Claimant submits that the Defendant occasioned a repudiatory breach of its employment contract with the Claimant by the unilateral change of the Claimant’s duties when it unilaterally changed the Claimant’s designation within the company from Deputy General Manager, Mortgages & Estates to Deputy General Manager, Special Duties.  Claimant further submits that Defendant breached the implied term of trust and confidence inherent in the Claimant’s contract of employment by the unilateral re-designation of the Claimant as DGM Special Duties, the directive to vacate his office, the letter to the banks removing the Claimant as a signatory to the company accounts, and the Minute of the Managing Director on Exhibit D2 recommending that Claimant be urged to resign.  Claimant submits that collectively these events constitute overwhelming reasons for the Claimant to conclude, as he did, that he had been constructively dismissed.

ON Issue B – The Defamatory Publication, Claimant argues that the wordings though appearing innocuous and devoid of defamatory content were indeed defamatory of the Claimant by the innuendo contained therein.

On the issue of jurisdiction to hear the Relief on defamation, Claimant submits that by Section 254C (a), the defamation claim arose in relation to the Claimant’s employment and thus within the jurisdiction of this Court.  He also submits that it is trite law that Court’s which have jurisdiction to determine the principal reliefs in a matter assume jurisdiction of the ancillary reliefs. He referred to the case of Federal Government of Nigeria v Oshiomhole [2004] 3 NWLR Part 860 page 305 at 326 paras. A – B, where the Court of Appeal held that:

… an ancillary [claim] can only be properly determined by that Court with jurisdiction to decide the principal claim. After all, if there is a Court which with jurisdiction to determine all the issues, it is improper to approach a Court which is competent to determine only some of the issues.

He argues that the effect of the above dictum is that a Court with jurisdiction to determine the principal claim can assume jurisdiction over any ancillary claim.

Issue C – the Counter-claim, Claimant submits that resignation is an absolute right and cannot be rejected by the employer – Adefemi v. Adegunde [2004] 15 NWLR (Pt. 895) Pg. 1.    WAEC v. Oshionebo (2006) 12 NWLR (Pt.994) pg.258.  He submits that there was no contract to be breached due to the fact that the Claimant’s resignation became absolute on the date the resignation letter was received by the Defendant – Yesufu v. Gov. Edo State [2001] 13 NWLR (Pt. 731) 517.

COURT’S DECISION

I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses.  I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour.  In addition, I evaluated all the exhibits tendered and admitted.

From the state of the pleadings and the evidence led, the facts are settled that the Claimant was an employee of the Defendant and resigned from the employment on the 18th of July 2016.  Claimant alleges that his resignation was actually a constructive termination by the Defendant.  The Defendant however alleges that Claimant breached his contract when he stopped coming to work despite his resignation having been rejected.  Claimant also claims damages resulting from his defamation by the Defendant. Defendant challenges the jurisdiction of this Court to hear the Relief for defamation.  I have considered the issues raised for determination by the parties, and will determine them in the course of determining the following issues:

  1. Whether the Claimant is entitled to his Claim.
  2. Whether the Defendant is entitled to its Counter-Claim.

  1.  Whether the Claimant is entitled to his Claim:

To determine if the Claimant is entitled to his claim, I proceed to consider each of Claimant’s Relief.  The first Relief sought by Claimant is for a Declaration of this Honourable Court that the actions of the Defendant amount to constructive dismissal of the Claimant and accordingly constitute a wrongful termination of the Claimant’s employment.  In proof, Claimant relied on various actions of the Defendant which culminated in forcing him to resign.  The Defendant urges the Court to rather find that Claimant resigned as a result of investigations on allegations against him.

Constructive dismissal or termination as indicated by case law is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign.  In such cases, the employee retains the right to seek legal compensation as having been dismissed or terminated constructively. Thus, the employee terminates his employment in response to his employer’s treatment of him.  The employer creates a hostile environment to force the employee to resign out of his own volition.  In the case of Western Excavating v. Sharp (1978) 1 All ER 713, Lord Denning listed what a Employee must prove in a claim for constructive dismissal as follows:

  1. A repudiatory breach on the part of the employer,
  2. An election by the employee to accept the breach and treat the contract as at an end,
  3. The employee must resign in response to the breach,
  4. The employee must not delay too long in accepting the breach, as it is always open to an innocent party to waive the breach and treat the contract as continuing(subject to any damages claim that they may have)

This Court in the case of Miss Ebere Ukoji v. Standard Alliance Life Assurnace Co. Ltd. Suit [2014] 47 NLLR (Pt. 154) 531held that:

Globally, and in labour/employment law, constructive dismissal, also referred to as constructive discharge, occurs when an employee resigns because his/her employer’s behaviour has become intolerable or heinous or made life difficult that the employee has no choice but to resign. Given that the resignation was not truly voluntary, it is in effect a termination. In an alternative sense, constructive dismissal or constructive discharge is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign. Thus, where an employer makes life extremely difficult for an employee, to attempt to have the employee resign, rather than outright firing the employee, the employer is trying to create a constructive discharge. The exact legal consequences differ from country to country but generally a constructive dismissal leads to the employee’s obligations ending and the employee acquiring the right to seek legal compensation against the employer. The employee may resign over a single serious incident or over a pattern of incidents, Generally, the employee must have resigned soon after the incident.

In the following cases, the Courts held the following circumstances as justifying a holding for constructive dismissal:

  1. unilaterally changing the employee’s duties, as in Coleman (DA) v. S&W Baldwin [1977] I.RL.R 342.
  2. unilateral reduction of the employee’s payment, as in Industrial Rubber Products v. Gillon [1977] I.R.L.R 389
  3. insisting upon the employee to work beyond the contractually obliged hours; see Derby City Council v Marshall [1979] I.C.R. 731
  4. requiring the employee to work where they are not contractually required to work; O’Brien v Associated Fire Alarms [1968] 1 WL.R. 1916 and Courtaulds Northern Spinning v. Sibson [1988] I.C.R. 451.
  5. Breach of the implied term of trust and confidence – Malik v Bank of Credit and Commerce International SA (In Liquidation) [1997] 3 All E.R. 1.

The Claimant in his evidence stated that a few weeks into the tenure of the Managing Director, he was directed to vacate his office space in the Defendant Company.  Within this period, he applied for and proceeded on his annual leave.  He was expected to resume on the 11th of July 2016 but was absent from work from the week of 11th of July2016.  Exhibit

C9/D5 is a letter from Primose Specialist Hospital dated 14th July 2016.   By 12th of July, Defendant wrote a letter of change of signatory to its bankers removing Claimant as signatory.  Defendant in evidence states that the reason for this is because Claimant was not around to sign cheques for the Defendant. However, during cross-examination, DW stated that he was signatory to the Defendant’s account, and that while he was on leave he remained signatory to the Company’s account and continued after he returned, and that his absence did not affect the operations of Defendant.   Collectively considered, it is difficult to accept that without other causes, that an employer whose staff was to return to work on 11th of July from leave but fails, already justifies proceeding to change signatories, without first giving the employee the benefit of stating the reason for the absence from work.   This brings to focus the relationship between the Claimant and the Defendant within this period.

Exhibit D1 is a query from Defendant to Claimant while exhibit C2 is the Reply by Claimant.  No further formal communication was made to the Claimant on the query.  However, there is a Minute, presumably from the Managing Director directing that the Claimant be asked to resign.  I believe that it was under this circumstance that Claimant applied for his leave, and had his signature removed from the company.  The Claimant resigned on the 18th of July.  The Claimant also testified that his designation was changed, to an unknown position in the company, with no responsibilities.  This, Defence Witness admitted when he said:

The Claimant was DGM (Special Duties) before his exit.  I do not know who was DGM Special Duties before Claimant.  When I joined the company, I met him as DGM Special Duties.  The Defendant currently does not have a DGM Special Duties.

I have considered Exhibit C7 and do not see the office of DGM Special Duties, and it would appear from evidence that the office existed only for Claimant during the period in issue and ceased to exist with Claimant’s resignation.  The question is raised if, in the circumstance of the Claimant, it would be reasonable to expect him to continue to stay in the company.  First, Claimant was moved from his office; and for whatever purpose, there is no evidence challenging his assertion that he worked from his car.  Upon not resuming at work on 11th July, a letter was written removing him as signatory of the company’s account.  Again, his office and responsibilities were taken away and replaced with one without place in the company and with no known responsibilities.  An intention to have Claimant resign was also expressed in the Minute of the Managing Director within this period.  All these suggest that there was a hostile relationship between the management and the Claimant, and Claimant would not reasonably be expected to continue in the employment. Though having resigned, I find that the resignation was induced by Defendant’s action.  This finding is also supported by the contents of Exhibit C5 which elaborately stated to the Defendant the circumstances leading to Claimant’s resignation:

I tendered my resignation after serious deliberation and consideration of my position within the company.  It was not an easy decision to make but I felt that there was no other option.  The environment had become very hostile to me, my reporting line had been tactfully removed from me (this explains why I was referred to as DGM Special Duties in your letter, a position that had not been previously communicated to me).  I was unprofessionally given a few hours’ notice to vacate the office I had occupied for seven years in the presence of the newly employed DGM (who I was meeting for the first time) with no alternative office.  I had to pack all my belongings into my car and took them home, a situation that was very embarrassing and has made it easy to resign without needing to come back from leave to the office to pick anything.  The office was immediately allocated to the new employee who is my replacement.  I resolved to working from the discomfort of my vehicle as I was not welcomed in any other office because it was perceived that an association with me could potentially jeopardise their employment,  I was eventually allocated an inadequate office without basic facility and remote from the main office a day before I went on leave.

I have become an object of ridicule, people talked in whispers whenever they saw me.  It became increasingly difficult for me to come to work.

I no longer had a job designation, you informed me that I was no longer going to be in charge of Mortgage and Estates and that you were considering where to put me within the company.  You brought in a new member of staff to do my job.  I had in essence become redundant…

The situation created above, which was not definitely denied by Defendant, suggests a clear intention, on the part of the Defendant, to force the Claimant out of the company.

Defendant stated that Claimant resigned to avoid the on-going investigation into his activities.  I do not find evidence of such investigation.  I note that there was a query on the Claimant dated 19th April, 2016 (Exhibit D1) to which Claimant responded to via his letter of 21st April 2016 (Exhibit D2). There was no suggested further investigation communicated to the Claimant.  The Minute on the response rather suggested that he be asked to resign.  Claimant could therefore not have resigned pursuant to any investigation since none was communicated or suggested.  As held in the case of Cosmos C. Nnadi v. National Ear Care Centre & Another (2017) 10 ACELR, the Court would validly presume an acquittal in favour of an employee where an employer does not pursue the outcome of a disciplinary proceedings.  In the same vein, I would presume that the issues in the query had been settled where employer does not take any further act.

The culmination of all these lead to my finding that, Claimant resigned pursuant to the hostile actions against him by the Defendant.

Defendant purported to have rejected Claimant’s resignation because it did not comply with the provisions of the Employee Handbook. The relevant portion of the Handbook provides that:

ACCEPTANCE OF RESIGNATION:

This is contingent upon the following:

  2. There is no investigation pending or outstanding either on fraud or other serious misconduct.
  3. …
  4. ……

I have already found that there was no pending investigation against the Claimant.  Secondly, it is trite that 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.  See WAEC v. Oshionebo (2006) 12 NWLR (Pt.994) pg.258.  This was also the decision in Chief Akindele Ojo Sunday v. Oyedele Samuel Olugbenga & Ors (2008) LPELR-4995(CA) where the Court of Appeal held that:

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.

Based on the above, Defendant’s rejection of the resignation comes to no issue.

From all the above, I find that Claimant is entitled to his first Relief.  I therefore and hereby declare that the actions of the Defendant amount to constructive dismissal of the Claimant and accordingly constitute a wrongful termination of the Claimant’s employment.

On Claimant’s 2nd Relief – Damages in the sum of N353,000.00 (Three Hundred and Fifty Three Thousand Naira) being one month’s salary in lieu of notice for wrongful termination of the Claimant’s employment.  Having found that the Defendant terminated the employment of the Claimant constructively, it is in evidence that the parties by Exhibit C2 are bound to give each other one month notice of termination of their employment.  The Defendant, in the constructive termination failed to give the required one month notice.  The remedy against any party in breach of contract lies in damages – Osakwe v. Nigerian Paper Mill Ltd. (1998) 10 NWLR (Pt.568)1.  In support of this, it was held in Selcon Tannery Ltd v. Abubakar & Ors (2013) LPELR-21412(CA), that:

It is settled law that the remedies available to an employee whose contract of employment has been breached are his salary and other legal entitlements due to him in the course of the employment and nothing more Chukwumah v. Shell Petroleum Co. Ltd (1993) 4 NWLR (Pt 285) 512, Cooperative Bank Plc v. Essien (2001) 4 NWLR (Pt 704) 479, Ativic v. Kabelmetal (Nig) Ltd (2008) 10 NWLR (pt 1095) 209.” Per ABIRU, J.C.A (P. 27, paras. B-D).

In case of a breach or repudiation of contract of employment in a master and servant relationship, the remedy is in damages calculated to the period of notice to terminate the contract of service together with other accrued entitlements, if any – NNPC v. Olagbaju (2006) ALL FWLR (Pt. 334) 1855 at 1881 (CA).  The reasons for constructive termination may vary, however, an employer who creates an unbearable working environment to force an employee to resign should not by so doing, avoid being liable to an employee for damages or other remedies either provided by the law or in the terms of contract.  Claimant in evidence stated that his one month salary is N353, 000.00 (Three Hundred and Fifty Three Thousand Naira) without any challenge by the Defendant.  I therefore find that Claimant is entitled to this Relief having had his employment caused to be terminated by the Defendant, without the requisite one month notice.

On Relief 3 – a Declaration that the words complained of in paragraph 13 ( though I see it appearing in paragraph 16) of the Statement of Facts constitutes a defamatory publication and thus amounts to a libel published of the Claimant. The Defendant in reaction to this questioned the jurisdiction of this Court to hear this head of Relief on the ground that:

The National Industrial Court has been reluctant in expanding the frontiers of its jurisdiction when it comes to the matters “incidental thereto”.

Defendant referred to a couple of cases of this Court where this Court declined jurisdiction over defamation.  It referred to the case of Agnes Omeyi Adoga (Mrs ) & Ors v. Ameh Adoga Ors unreported Suit No: NICN /LA/15/2017. The ruling of which was delivered on the 24th May 2017, and the case of Alex Paul Elijah & Anor v. Standard Metallurgical Company Ltd (SMC ) & Anor Unreported Suit No: NICN /LA/212/2016. The ruling of which was delivered on the 10th February, 2017.  Defendant further argues that this Court has generally declined jurisdiction over other heads of liability in tort, which are all sui generis and has been reluctant to assume jurisdiction even when the matters “incidental thereto or connected therewith” argument has been raised and even when the defamatory imputation was said to have arisen from the work place, see – Lawrence Idemudia v LASU Unreported Suit No NIC/LA/08/2009 the ruling of which was delivered on 28th September, 2010.

I have considered some of the cases referred to by Defendant in this respect.  In the case of Alex Paul Elijah & Anor v. Standard Metallurgical Company Ltd(SMC) (supra), it is to be noted that the Court found that the issue of defamation, arrest and detention of the Claimant constituted the main Relief over which the Court did not have jurisdiction. In the other cases, the effect of the phrase “related to, connected to, arising from or pertaining to” in reference to the specific subject matter were not put in issue.

A Court is competent and has jurisdiction in a case if inter alia the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. See Madukolu v. Nkemdilim [1962] 2 SCNLR 341 and Mwana v. UBN Plc [2003] 16 NWLR (Pt. 846) 218. The question then is whether the Claimant’s claim for a Declaration that the words complained occurred in such a context for this Court to consider its defamatory implications; not just because it occurred in the context of employment, but because it is contemplated and is related to, connected to, arising from or pertaining to, an issue that falls within the jurisdiction of this Court as to come within the purview of section 7(1)(a) of the National Industrial Court Act 2006 and section 254C(1) of the CFRN 1999.

In determining the extent of a Court’s jurisdiction, it is now settled that the proper place to look is the enabling law setting up the Court and conferring it with jurisdiction – Umaru V Aliyu (2011) (Pt. 1241) Pg. 600.  In the case of the NIC, the appropriate place to look in ascertaining the extent of its jurisdiction is Section 254C of the 1999 Constitution (as amended) and Section 7 of the NIC Act 2006. Section 254C (1)(a)confers an expansive jurisdiction on the Court to adjudicate on any matter arising from the workplace. The section provides that the jurisdiction of the NIC shall extend to all matters-

Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matter incidental thereto or connected therewith”

Borrowing the words of Oputa JSC in UTC v. Pamotei (1989) 2 NWLR (Pt. 103) pg. 244 @ Pg. 303 paras. A-B,  “it is now a settled principle of construction of statutes that the legislator does not use any words in vain”. In this light, the repetitive use of the words “connected with”, “related to”, “pertaining to”, “arising from”, “incidental thereto” or “connected therewith” appearing in Section 254C is not a vain use of words by the drafters of the Constitution but is meant to include matters that arise within and are so connected to the employment situation that it should fall within the jurisdiction of the same Court hearing the main reliefs founded on the employment relationship.  This is in line with the Supreme Court decision in Tukur v. Government of Gongola State (1989) 4NWLR (Pt.117) Pg. 517 wherein Oputa JSC declared that in civil adjudication, an accessory or ancillary claim must necessarily follow the principal claim to its forum competens. In Gafar v. Government of Kwara State (2007)4 NWLR (Pt. 1024) Pg. 375 the Supreme Court adumbrated on this principle and stated that it would only apply where the determination of such ancillary claim or reliefs must necessarily involve a consideration or determination of the principal claims, in which case the ancillary claims are inexorably linked with the principal claims and should therefore be litigated at the same judicial forum ex debitio justicae.

The Court of Appeal, Benin Division in Ainabebholo v. Edo State University Workers Farmers Multi-Purpose Cooperative Society & 2 Orthers (2016) 7 ACELR 111, was faced with an appeal against the striking out of a suit by the lower Court on grounds of lack of jurisdiction at the coming into being of the National Industrial Court, and had to resolve whether the High Court is empowered to sever a claim with a view to transferring the aspect of labour to the National Industrial Court and proceeding to determine an ancillary claim.  The Court refusing the appeal held that:

It would be highly preposterous for the Appellant to assume, as he did, that the lower court would sever the Appellants claim with a view to transferring the aspect of the labour to the NIC, and proceeding to entertain and determine the ancillary libel claim. Undoubtedly, the lower court has no jurisdictional competence to sever the claims, with a view to transferring a part, and determining a part thereof.  See Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275 @ 283.

In Jacinta Nwosu v. First City Monument Bank Plc. & Others  Suit No: NICN/ABJ/155/2013 Ruling of which was delivered on 12th March 2015 this Court had cause to consider a claim for defamation in the context it appears in this suit.  The Court held that:

A thorough perusal of the entire gamut of the Third Alteration Act 2010 from which section 254 (I) (C) of the Constitution is a derivative clearly accommodates the entire reliefs of the Claimants in this suit; this is so because (1) There is an established contract of employment between the Claimant and the first defendants (2) The contracts has terms and condition governing the engagement. (3) The Claimant is alleging the breach of those terms. (4) Other ancillary reliefs of the Claimants bordering on damages, interest, and injunction are normally derived from the main claim of breach of contract of employment. The Court should not at these stage decide this issues in limine but provide a level playing ground for litigants to ventilate their grievances by calling evidence in a full scale trial; see Attorney General of River State Vs. AG. Bayelsa State; 2013 Pt. 1340 NWLR. I hold that the claim of the Claimant are properly located within the subject matter jurisdiction of this Court.

Applying the premises stated above, what then is the claim before this Court?  The first two reliefs of the Claimant read as follows:

  1. A DECLARATION of this Honourable Court that the actions of the Defendant amount to constructive dismissal of the Claimant and accordingly constitute a wrongful termination of the Claimant’s employment.
  2. DAMAGES in the sum of N353,000.00 (Three Hundred and Fifty Three Thousand Naira) being one month’s salary in lieu of notice for wrongful termination of the Claimant’s employment.

The 3rd Relief seeks:

  1. A DECLARATION of this Honourable Court that the words complained of in paragraph 13 above constitutes a defamatory publication and thus amounts to a libel published of the Claimant.

The words complained of are the contents of exhibit C6, which is Defendant’s letters to their Bankers notifying them of change of signatories of Defendant’s account.  This act formed part of the basis of Claimant’s contention for constructive termination.  I do not find how that fact can be considered by this Court, without a corresponding finding on the effect of the act and the words; having been sought for, by Claimant.  To do otherwise will imply that this Court will consider the act complained of as constituting constructive termination, and send the finding on the effect of the word to another Court.  This will not only create avoidable multiple suits, but may breach Claimant’s right to be heard, especially, where the Court that is assumed to have jurisdiction, opines that the matter is labour related and thereby decline to exercise jurisdiction.

It is my humble view that, by the provision of section 254 (C) (I) of the 1999 Constitution as amended, and by the grant of exclusive jurisdiction to this Court on matters, amongst others: (a) Relating to, or connecting with any labour, employment, trade unions, industrial relation and matters arising from workplace, the conditions of service including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith (f) ‘relating to or connected with unfair labour practice; clearly accommodates the entire reliefs of the Claimants in this suit; including Reliefs 4 for damages for defamation and Relief 5 for an Order directing the retraction of the said communication and apology to the Claimant, which derives from the finding of the exercise of jurisdiction over Relief 3 reproduced above.

Having thus found, I now proceed to consider if the pleadings as well as the evidence before this Court has established the wrong of defamation within the context of the breach of employment terms in dispute.  I have considered the ingredients of the tort of defamation, as stated in Ologe & ors. v. New Africa Holdings Limited (2013) LPELR-20181(SC),  Iloabuchie v. Iloabuchie (2005) 13 NWLR (pt.943) 695 SC; and Concord Press (Nig.) Ltd. v. Olutola (1999) 9 NWLR (pt. 620) 578.  In Ebong v. Udoh & Anor (2014) LPELR-23447(CA), the Court of Appeal restated the ingredients of defamation thus:

The Nigerian jurisprudence on the constitutive ingredients which a plaintiff in an action for libel must prove now spans a wide compass. We can only scratch the periphery. Iloabachie v Philips [2008] 8 WRN 79; [2005] All FWLR (Pt. 272) 223; [2005] 5 SCNJ 84; [2005] 13 NWLR (Pt. 943) 695; Din v African Newspaper (Nig) Ltd [1990] 3 NWLR (Pt. 139) 392; Sketch Publishing Co Ltd v Ajagbemokeferi (supra); Ekanem-Ita v Fetuga [1991] 7 NWLR (Pt. 204) 449; Concord Press (Nig) Ltd v Olutola [1999] 9 NWLR (Pt. 620) 578; African Newspapers of Nigeria Ltd v Coker [1973] 1 NMLR 386; Benue Printing and Publishing Corporation v Gwagwada (1989) 4 NWLR (Pt.116) 439 etc.

In all, these authorities are unanimous that such a plaintiff can only be entitled to judgment if he proves that the defendant: (i) published a statement in a permanent form; (ii) that the statement referred to him; (iii) that the statement was defamatory of his person in the sense that -(a) it lowered him in the estimation of right-thinking members of the society or (b) it exposed him to hatred, ridicule or contempt; or (c) it injured his reputation in his office, trade or profession; or (d) it injured his financial credit.

The cases are many. We shall, only, cite one or two of them here, Sketch Publishing Co Ltd v Ajagbemokeferi (1989) LPELR -3207 (SC) 37, B – G; African Newspapers Ltd v Ciroma [1996] 1 NWLR (Pt 423) 156; Ugo v Okafor [1996] 3 NWLR (Pt 438) 542; Guardian Newspapers Ltd and Anor v Ajeh (2011) LPELR – 1343 (SC) 15, B – D; Iloabachie v Iloabachie [2005] 13 NWLR (Pt 943) 695, 736.” Per NWEZE, J.C.A. (P.25,paras.A-F)

 The communication alleged to be defamatory consists of a letter issued by the Defendant to several commercial banks, conveying the Defendant’s decision to remove Claimant as a signatory to its accounts and urging the banks to “be guided accordingly”. Claimant argues that considering the timing of the issuance of this letter, and the hostility being experienced while at work, the Claimant believes the letter was issued to defame him and to convey him as an unsavoury and untrustworthy person who ought not to be signatory to the accounts of a company such as the Defendant.

The communication complained of is reproduced hereunder:

LAGOS BUILDING INVESTMENT COMPANY PLC

ACCOUNT NOS. 2003834747, 20247 & 1000114191

The above account domiciled in your bank refers.

Please be informed that the name below is no longer a signatory to Lagos Building Investment Company Plc. bank account and therefore cease to carry out transactions relating to the company’s account in your bank.

NAME                                                DESIGNATION

FOLARIN BAKARE                                    DEPUTY GENERAL MANAGER (B)

Please be guided accordingly

Yours Faithfully,

FOR: Lagos Building Investment Company Plc.

Signed:                        Signed

The Claimant concedes in his submissions that the wordings captured above appear innocuous and devoid of defamatory content, but that it expresses an inference or an innuendo which is defamatory of him.

I have carefully considered the communication, and the circumstance under which it was made and received.  Given that it was made under a hostile working relationship between the Claimant and Defendant, the recipients of the letter were not privy to the hostility that existed between the parties.  The recipients, by their operation, are used to receiving such communications, which mostly indicates what it expresses; which is, change of signatories to an account.  The meaning of a communication is that which the recipient correctly or mistakenly but reasonably understands that it was intended to express.  I do not find that the communication expressed above is capable or bears any defamatory connotations, even in the circumstances under which it was made.  Claimant is therefore not entitled to Relief 3.  By this finding, Reliefs 4 and 5 also fail.

 

In Counter-Claim, the Defendant seeks a Declaration that the Claimant having failed to give the requisite notice of resignation is in breach of the contract of employment between the Claimant and the Defendant as contained in the company handbook.  Having already found that the Claimant was constructively terminated by the Defendant, the Counter-claim fails in its entirety.

For the avoidance of doubt, this Court holds as follows:

  1. Relief 1 succeeds.  I hereby declare that the actions of the Defendant amount to constructive dismissal of the Claimant and accordingly constitute a wrongful termination of the Claimant’s employment.
  2. Relief 2 succeeds.  Defendant is hereby ordered to pay to the Claimant, the sum of N353,000.00 (Three Hundred and Fifty Three Thousand Naira) being one month’s salary in lieu of notice for wrongful termination of the Claimant’s employment.
  3. Reliefs 3, 4 and 5 fail.
  4. The Counter-claim fails.
  5. Defendants are to comply with the Order in Relief 2 above not later than 30 days from today, failure upon which interest will accrue at the rate of 20%.
  6. Parties are to bear their individual costs.

Judgment is entered accordingly.

                                              …………………………………….

Hon. Justice Elizabeth A. Oji PhD

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