Mrs. Ajaegbu Kelechi -VS- Sky Bank Plc

THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

Before His Lordship:-

HON. JUSTICE E.D. E ISELE – JUDGE

DATE: 27^th SEPTEMBER, 2018 – NICN/ABJ/329/2015

BETWEEN

MRS AJAEGBU KELECHI ONYEUKWU – CLAIMANT

AND

SKYE BANK PLC – DEFENDANT

REPRESENTATION

JUDGMENT

By the writ filed on the 30^th of October, 2015 the Claimant claims as follows:

a)A Declaration that the Claimant’s purported resignation is null and void and of no effect whatsoever having not been acknowledged by the Defendant.
b)A Declaration of the Honourable Court upholding and sustaining the letter of cessation of employment dated 28^th May, 2015.
c)An Order of the Honourable Court directing the Defendant to immediately pay to the Claimant all his entitlements as spelt out in the letter of cessation of employment dated 28^th May, 2015 and the net financial position attached to the said letter in the sum of One Million, Eight Hundred and Twelve Thousand, Twenty Two naira, twenty nine kobo (₦1,812,022.29k) being the outstanding balance from the sum of Two Million, Ten Thousand, Two Hundred and Fifty naira, Thirty four kobo (₦2, 010, 250.34k) that the Claimant is entitled less the sum of One Hundred and Ninety Eight Thousand, Two Hundred and Twenty Eight naira five kobo (₦198, 228. 05) already paid to the Claimant.
d)An Order directing the Defendant to pay to the Claimant the sum of Five Million naira (₦5, 000, 000.00) only as a result of non-payment of her entitlement by the Defendant as spelt out in the net financial position attached to the letter of cessation of employment dated the 28^th May, 2015.
e)An Order directing the Defendant to pay to the Claimant interest on the sum of One Million, eight Hundred and Twelve Thousand Twenty Two naira, Twenty nine kobo (₦1, 812, 022.29k) at the prevailing interest rate from the date judgment is delivered until the whole judgment debt is finally satisfied.
f)An Order directing the Defendant to pay to the Claimant the sum of Two Hundred and Fifty Thousand naira (₦250,000) only as cost of the prosecution of this suit.
g) And for any further Order(s) as the Court will deem necessary to make in the circumstances of this suit.

THE CASE OF THE CLAIMANT

It is the case of the Claimant that she was at all material times relevant to the facts of this case a Senior Banking Officer (SBO) with Mainstreet Bank Ltd (Now Skye Bank Plc. the Defendant) since 5^th August, 2011 and discharged her duties creditably until her purported disengagement/cessation of employment on the 28^th of May, 2015. It is her case that she was offered a probationary Appointment as PRO MANAGER of the defunct Mainstreet Bank Ltd whose successor in title is now Skye Bank Plc. (the Defendant in this suit) by a letter dated 5^th August, 2011 headed: Re: Employment admitted in evidence as Exhibit A.

She maintained that by Exhibit A1 her letter of Confirmation dated 12^th July, 2012 he appointment was confirmed. She maintains that as Senior Banking Officer (SBO) of the Defendant she discharged her duty creditably until her purported disengagement/cessation of employment on the 28^th May, 2015. She maintained that on the 29^th April, 2015 she tendered her resignation via the Defendant’s web portal, but was yet to conclude her final exit documentation and clearance as required so as to allow for one month notice period to elapse. She stated that she was still in the service of the Defendant discharging her daily duties until 28^th May, 2015 when she was issued with Exhibit B and B1 and an attachment in B2. The B Exhibit being a letter of cessation of employment and the attachment being a computation of her net financial position as at 31^st May, 2015 with her entitlement clearly spelt out therein. She stated that she did not receive any letter or email or any other correspondence whatsoever concerning her purported resignation.

She maintains that while she awaited payment of her entitlements (as spelt out in the letter of cessation of employment dated 28^th May, 2015, other persons who were equally issued letters of disengagement received their full entitlements while she was left out. That her account was then subsequently credited with the sum of One Hundred and Ninety Eight Thousand, Two Hundred and Twenty Eight Naira, Five kobo (₦198, 228.05). And she was told to her chagrin that the said sum is all that she is entitled to because her resignation of 24^th April, 2015 “as against what was computed in the cessation letter”.

She maintains that had her purported resignation letter been accepted and taken into consideration, the letter of cessation of employment dated 28^th day of May, 2015 would not have been necessary. That this letter in Exhibit B caused her serious embarrassment and dented her evolving professional banking career. That the refusal of the Defendant to pay up her entitlement as contained in the letter of termination of employment further caused her serious shock which caused her health condition to worsen. She caused her Solicitors to write the letter in Exhibit BB to BB2 dated 10^th July, 2015 and the Defendant replied through Exhibit C and C1 dated 15^th July, 2015 placing reliance on her purported unacknowledged resignation as the basis for denying her entitlement as contained in the letter of cessation of entitlement.

THE CASE OF THE DEFENDANT

The Defendant denied that the Claimant was employed by Mainstreet Bank as a Senior Banking Officer in August, 2011. The Defendant admitted its status as a Bank and also admitted that the Claimant was offered probationary appointment as a PRO MANAGER of the defunct Mainstreet Bank Limited whose successor in title is Skye Bank Plc. And that the Claimant’s employment was confirmed on 12^th July, 2012.

The Defendant denied that the Claimant discharged her duties creditably until her purported disengagement/cessation of employment on 28^th May, 2015. The Defendant also admitted that the Claimant tendered her resignation through its web portal but that once an employee tenders a notice of resignation without forfeiture of a month’s salary, a month’s notice in lieu begins to run automatically. And that the Claimant was in the service of the Defendant until 27^th May, 2015 to serve out the one month obligatory period necessitated by her notice of resignation on 29^th April, 2015 that at no time during the one month notice period she served out with the Defendant did she expressly or otherwise rescind that decision and the defendant had no reason whatsoever to contact the Claimant.

It is also the case of the Defendant that after it acquired Mainstreet Bank Ltd it became necessary to right size the work force for effective Management and it issued letters of disengagement to all affected employees along with computation of their entitlements. That while sending out letters of disengagement it had inadvertently included the Claimant because of the general nature of the exercise and the fact that May 28, 2015 was the last working day before the final integration between Mainstreet Bank Plc. and the Defendant on 1^st June, 2015.

That it was only after handing out the letters of disengagement to its recipient’s that management realized the mistake of including the Claimant who had resigned and was no longer in the service of the Defendant as at 28^th May, 2015 in the exercise. And based on the error it paid off the other affected employees while it rectified the error of treating the Claimant whose resignation had become effective as a subsisting employee. That as a consequence the Claimant was paid the sum of ₦198, 228.05 (One Hundred and Ninety Eight Thousand, Two Hundred and Twenty Eight naira, five kobo). The Defendant went further to maintain that it was aforementioned error that had brought about the letter of 28^th May, 2015 in Exhibit B to the Claimant and that it had expeditiously corrected the error and paid the Claimant her entitlements once it realized the mistake. The Defendant went on to deny owing the Claimant in the amount claimed by the Claimant.

CROSS EXAMINATION OF THE WITNESSES

In the cross examination of the Claimant, she admitted that she resigned from Mainstreet Bank (now Skye Bank Plc.) She admitted she put in her resignation through the Bank’s web portal and it was the only way the Bank would know she had resigned.

Asked whether if she had written her resignation letter by hand if the Defendant would have accepted, she answered and said that she had never seen anyone resign by handwritten means. The following questions and answers ensued:

Q: Were you the only one that received a letter of cessation of employment?

ANS: In my Branch, I was not the only one.

Q: If you had known that the Bank would issue letters of cessation to others would you have resigned before then?

ANS: Yes.

Q: So it would not have mattered to you that you would have lost the benefit that comes with cessation of employment.

ANS: It would not have mattered to me if they had not issued me the letter of cessation because I voluntarily put in my cessation.

Q: In your Witness Statement you said your Solicitor wrote the Bank and the Bank replied.

ANS: Yes, they wrote my letter he wrote back.

Q: In the Bank’s letter of reply to your Solicitor was there any explanation why the letter of cessation was issues to you?

ANS: There was no explanation.

Q: In that letter can you recall whether there was a demand that you should return the letter of cessation.

ANS: I can’t remember.

Q: Did you ever return the letter of cessation?

ANS: It’s my property I did not return it. I only acknowledged the letter for the processing of my entitlements as they requested.

In the cross examination of DW1, he told the Court that he had been working for the Defendant for four years as a legal officer. He also told the Court that the Claimant’s notice of resignation was to last for one month from 29^th April to May 29^th. He maintained that Exhibit C the letter of cessation of employment was issued to the Claimant in error. And that the error was noticed by the Bank almost immediately it was issued but he could not say exactly when he was asked:

Q: Was the said error noticed after the acquisition of Mainstreet Bank by Skye Bank?

ANS: I would say Mainstreet Bank was acquired in 2014 not 2015. There was a process for Mainstreet Bank, it was after.

Q: Are you aware that the said letter of cessation was issued in the letter head of Mainstreet Bank?

ANS: I am aware.

Q: From the facts given having noticed the error, your organization never deemed it fit to write the Claimant about it until July, 2015.

ANS: I don’t know.

DW1 also told the Court the Claimant’s resignation was unacknowledged because she resigned on a portal. He also told the Court the Defendant did not rely on the Claimant’s letter of resignation because it wanted to pay less money to the Claimant.

THE WRITTEN ADDRESS OF THE PARTIES

In the final written address of the Defendant the following issues were formulated for determination:

a)Whether the Claimant’s resignation is null and void as contended by the Claimant.
b)Whether the mistake of the Defendant is giving the Claimant a letter of cessation invalidates the resignation of the Claimant.
c)Whether the Claimant is entitled to the reliefs sought.

The Claimant in her final written address formulated a sole issue for determination:

Whether on the preponderance of evidence before this Court, the Claimant is entitled to any and/or all her claims against the Defendant?

In arguing the first issues formulated for determination, the Defendant submitted that from the processes filed by the Claimant and the cross examination of the Defendant’s sole witness it was clear that this first issue is the basis on which the Claimant’s case rests. That the Claimant contends that her resignation from the employment of the Defendant is null and void having not been acknowledged by the Defendant.

The Defendant maintained the position that the resignation of the Claimant from the Defendant’s employ is valid and subsists. That the Claimant had by her own admission in paragraph 6 of her Statement of facts and paragraph 6 of her Witness Statement on Oath admitted that she had voluntarily resigned from the Defendant’s employment on the 29^th of April, 2015 through the defendant’s web portal.

Counsel then submitted that there is no legal requirement for a resignation letter to be acknowledged by an employer before the resignation letter is declared valid, citing the case of AMADI V. AFRICAN PUBLISHING AND PRINTING Co. (1967) NCLR 63 pg. 66 and the case of T. O. S. BENSON V. SAMUEL ONITIRI (1960) 5. F. C 69, 80 – 82. And the case of PROFESSOR T. M. YESUFU V. GOVERNOR OF EDO STATE & ORS (2001) 26 WRN 121 at 133, where Ogundare J. said that the resignation needs not to have been formally accepted by employer before taking effect.

It was submitted further for the Defendant that the cumulative effect in the above cited cases when applied to the present case shows beyond any doubt that the resignation of the Claimant was valid and that it was not necessary for the Defendant to acknowledge the resignation nor can the Defendant refuse to accept the resignation even where, by any stretch of the imagination it had wanted to do so.

In the Claimant’s written address in response where a sole issue had been formulated for determination. Here, at paragraph 3.1 of the address it was submitted for the Claimant that on the strength of the pleadings of the parties and evidence placed before the Court during the trial, the preponderance of evidence is in favour of the Claimant to entitle her to all her reliefs sought. The first being for a Declaration of the Honourable Court that the Claimant’s purported resignation is null and void and of no effect having not been acknowledged in any way by the Defendant and agreed with the Defendant that this was the basis on which the Claimant’s case was built referring to paragraphs 6, 7 and 8 and paragraph 16 of the Statement. It was also submitted for the Claimant that the Defendant admitted that the purported resignation of the Claimant was unacknowledged and referred to the admission in paragraph 17 of the Statement of Defence. And submitted that it is trite law that parties are bound by their pleadings citing ODUBEKO V. FOWLER (1993) 7 NWLR (PT. 308) 637; OSENI V DAWODU (1994) 4 NWLR (PT. 1339) 390 and ABOYEJI V. MOMOH (1994) 4 NWLR (PT. 341) 646.

The Claimant equally submitted that it is trite law that an admitted fact is taken as established and need no further proof citing EGBUNIKE & ANOR V. ACB LTD (1995) 2 SCNJ 58, Aguda Practice And Procedure (2^nd Edition) para 26.137 and Section 123 of the Evidence Act, 2011.

Counsel submitted for the Claimant that the Defendant’s reliance on the authorities of AMADI V. AFRICAN PUBLISHING AND PRINTING Co. (1967) Supra, T. O. S. BENSON V. SAMUEL ONITIRI (Supra) and YESUFU V. GOVERNOR OF EDO STATE (Supra) is misplaced in that the issue raised by the Defendant is totally different, distinct and distinguishable from the Claimants case before this Honourable Court. Counsel went to argue that the case cited by the Defendant borders on “acceptance of resignation”, while the case of the Claimant borders on unacknowledged resignation. That in the present case the Claimant’s resignation was not acknowledged at all.

In determining this first issue formulated by the Claimant, I will refer to a portion at page 61 per Ademola CJF in the (1996) 1 N.S.C.C 52 report cited by the Claimant.

“. . . It is clear that a member of a Corporation may give notice of resignation to the Corporation and that the Corporation has a right to receive it. There is absolute power to resign and no discretion to refuse to accept notice”

From the above quotation which the Claimant relied on in that portion of her written address it is crystal clear that

1) Even if the Defendant wanted to or had tried to resist her resignation it had no discretion to do so as was held in the cases relied on by the Defendant.

2) The fact that the letter was unacknowledged did not do any damage to the Defendant’s case as formulated in this issue.

3) The Claimant through Counsel failed to cite a single case in favour of her contention that a letter of resignation must be acknowledged failing which the Defendant would be undone by such act of failing to acknowledge the receipt of letter.

And in this case it must be borne in mind that the Claimant resigned through the Defendants web portal which the Defendant admits. In determining this first issue formulated by the Claimant, I find and do hold that the admission by the Claimant resigned through its web portal kills any contention that the letter of resignation had to be equally acknowledged. The law in this instant cannot be stretched that far afield, having laid down in ONITIRI, the upshot of the pronouncement of Ademola CJN as he was in the portion. I reproduced showed abundantly that implicitly by operation of law was the Defendant admitted receiving the letter of resignation it implicitly acknowledged it. And I do so hold.

I find and hold further that in the absence of any legal authority statutory or case law cited by the Claimant that voids an unacknowledged resignation letter, the Claimant’s resignation through the Defendant’s web portal cannot be said null and void. More so the Claimant did not write the Defendant rescinding her resignation.

Regarding the second issue formulated by the Defendant whether the mistake of the Defendant in giving the Claimant a letter of resignation invalidates the resignation of the Claimant. Here, the Defendant referred to Exhibit C – C1 its letter of reply to an earlier one sent by the Claimant’s Solicitors succinctly reflects the fact in the 5^th and 6^th unnumbered paragraphs, that the letter of cessation issued to the Claimant was done in error and had explained the circumstances which led to the error being the integration process of Mainstreet bank Ltd with Skye Bank Plc. And its attendant challenges and referred to paragraphs 9 – 12 of the Defendant’s Statement of Defence together with paragraphs 8 – 11 of the Defendant’s witness statement on oath. That these reiterated the fact that the said letter of cessation of employment issued the Claimant was mistakenly issued and did not reflect the true intention of the Defendant in the matter and submitted that the said letter of cessation cannot nullify the Claimant’s resignation.

Relying on the definition of “mistake” from the Black’s law dictionary (9^th Edition). And submitting that what transpired between the parties in this suit was a unilateral mistake which is a mistake where only one party is entering the contract under a mistake is where only one party is entering the contract under a mistake and the other party either knows or is presumed to know that the first party is indeed labouring under a mistake citing SAGAY: NIGERIAN LAW OF CONTRACT 2^nd Edition at page 256. And citing further the case of ABDUL YUSUF V. NIGERIAN TOBACCO COMPANY (WESTERN STATE COURT OF APPEAL). In suit No CAS/39/74 delivered on 14^th November, 1974 as reported in Sagay on Contract 2^nd Edition at page 256 where the Court held that in the circumstances of this case there was a clear case of unilateral mistake. That from all the surrounding circumstances of the Plaintiff must have known that the Defendants made a mistake in their offer. That any “reasonable fair minded person” would have been put on his enquiry as to the correctness or otherwise of the freight rate. The appeal therefore succeeded.

Here the Defendant opined that the implication of the judgment in the above case for the matter hand is that the Claimant having earlier resigned should have, if she was reasonable and fair minded been put on her enquiry and ought to have resigned and at no time rescind that resignation, the giving of a letter of cessation of employment to her by the Defendant must have been an error and to seek to profit thereby is nothing short of gold digging and should be rejected by the Court.

The Claimant in response to the above arguments of the Claimant at paragraph 3.11 submitted that the defence of mistake in the issuance of the cessation of employment letter (Exhibit B and B1) to the Claimant as contained in the Defendant’s final written address is untenable as the facts and evidence before the Court does not support that. That the Defendant’s contended that through Exhibit C – C1 (The Skye Bank letter dated 15^th July, 2015) that Exhibit B and B2 (The cessation of employment letter dated 28^th May, 2015 was issued in error, that the 28^th May, 2015 was the date the Claimant was issued with Exhibit B and B1 and it was the same date the Defendant admitted to have credited the Claimant’s account with the sum of (One Hundred and Ninety Eight Thousand Two Hundred Twenty Eight naira five kobo) placing reliance on the Claimant’s purported resignation. Yet the Defendant never reverted back to the Claimant through any form of correspondence whatsoever to lay any form of credence/support to the contention that the letter of cessation of employment in Exhibit B and B1 was written in error.

Referring to the cross examination of DW1 when asked when the error in the issuance of Exhibit B and B1 was notice by the Defendant and DW1 answered: “I don’t know”; And the admission of DW1 that Exhibit B and B1 were in the letter head of the Mainstreet Bank as against that of Skye Bank Plc. which is to say Exhibit B and B1 was issued before the merger between the Defendant and Mainstreet Bank and therefore not in error arising from the merger, it was submitted for the Claimant that the Defendant duly issued Exhibit B and B1 to the Claimant and because it did not acknowledge the purported resignation of the Claimant. And again if the Defendant had acknowledged the purported resignation, it would not have issued the Claimant with the cessation of employment letter in Exhibit B and B1, that the facts and evidence did not support the defence of mistake as put forward by the Defendant as the Defendant never deemed it fit to write to the Claimant until the Claimant’s Solicitor wrote Exhibit BB to BB2 to the Defendant 9dated 10^th July, 2015) a period of about 2 months a period of about 2 months after Exhibit B and B1 had been issued to the Claimant.

It was submitted for the Claimant at 3.12 that the Defendant only decided to rely on the purported resignation of the Claimant because the Defendant realized it was going to pay more money going by Exhibit B and B1.

Now the Defendant had at paragraph 3.5 argued that in keeping with the fact the letter of cessation of employment issued the Claimant was in error, that the Defendant had paid the Claimant the sum of One Hundred and Twenty Eight naira, five kobo (₦198, 228, 05) referring to paragraph 3 lines 3.6 of Exhibit C – C1 which is the Defendant’s letter of reply to the Claimant’s Solicitor bore out the fact that the payment of the Claimant’s entitlement at resignation was paid on the 28^th of May, 2015 and that this position was not controverted by the Claimant’s pleadings nor at the trial of the suit and this must be deemed as admitted, citing Section 123 of the Evidence Act, 2011.

That it was also instructive to note that during the cross examination of the Claimant she admitted that she was not the only employee to whom a letter of cessation of employment was issued pointing to paragraph 9 of the Claimant’s Statement of Facts and Statement on Oath respectively where she had admitted that of all the employees issued with letters of cessation of employment she was the only one that was not paid the sum contained in the said letter. That this made it crystal clear that at no time was there any intention on the part of the Defendant to treat the Claimant as the others as she had already resigned prior to that date. The Defendant submitted further that the payment of the Claimant’s entitlements at resignation and on or before the expiration of the one month required notice was good in law and does not in any way vitiate her resignation relying on Section 11 (7) of the Labour Act which states “All wages payable in money shall be paid on or before the expiry of any period of notice’.

That proceeding from the import of the above section it follows that the entitlement of the Claimant which was paid to her on the 28^th of May, 2015 was proper and did not vitiate her resignation whether or not that date was the date of expiration of her notice to the Defendant.

To the above the Claimant had at paragraph 3.14 of her written address referred to her 3^rd head of claim for her balance of her entitlement as computed by the Defendant in Exhibit B2. That her claim was not for wrongful dismissal but for payment of her entitlement having had her employment terminated by the Defendant via Exhibit B and B1 (the cessation of Employment letter dated 28^th May, 2015). That it is trite law that an employer has an unfettered power to terminate the employment of its employee without giving or assigning any reason citing in ODIASE V. AUCHI POLYTECHNIC (1998) 4 NWLR (PT. 547) 477 at 492. That the Defendant exercised its unfettered power or terminating the Claimant’s employment in issuing Exhibit B and B1 9cessation of Employment letter dated 28^th May, 2015) to the Claimant. That the Claimant is entitled to payment of all her entitlement as computed by the Defendant in Exhibit B2. That it was held by the Supreme Court per Uwaifo J. S. C in KATTO V. C. B. N (1994) 6 NWLR (PT. 607) 390 at 406 inter alia:

“It was in Nigeria Produce Marketing Board v. Adewunmi (1972) 7 NSCC 662, that it was further explained by this Court, that in such a situation, apart from the salary in lieu of notice, the Plaintiff would be paid other legitimate entitlement due to him at the time her employment was brought to an end”

Now, I find that both parties have failed to show exactly what the Claimant would have got at her resignation no copy of the letter of resignation of 28^th April, 2015 was put before the Court. The only document before the Court that contains details of any such entitlement/payment is that in Exhibit B to B2 written in the name of Mainstreet Bank the original employers of the Claimant.

The Defendant had relied on S.11 (7) of the Labour Act whose phrasing; “all wages” “payable in money” on or before the expiry of any period of notice”. To me this suggests payment as spelt out in Exhibit B to B2 the letter of cessation and this does not limit the amount payable to the Claimant as terminal entitlement whether upon her resignation or upon cessation by the employer to the sum of ₦198, 228.05 which was credited into the Claimant’s account by the Defendant. In the scenario of this case, I do not believe the Defendant Skye Bank Plc. had acted in error when the deed in Exhibit B and B2 was done in the name of Mainstreet Bank in transition of a Merger and Takeover, Skye Bank the Defendant should not now try to shy away from paying the amounts outstanding to the Claimant.

Upon this finding above, and by the preponderance of evidence before me, I find the claim of the Claimant succeeds in the 2^nd head of claim by which it is hereby declared that the letter of cessation of employment dated 28^th May, 2015 is hereby upheld.

That the Defendant pay the Claimant the outstanding balance of ₦1, 812, 022.29k being the outstanding balance from the sum of ₦2, 010, 250.34k which the Claimant was entitled to by the letter of cessation in third head of claim.

The Defendant is also ordered to pay the Claimant interest on the sum of One Million, Eight Hundred and Twelve Thousand, Twenty Two naira, Twenty nine kobo (₦1, 812, 022.29k).

Finally, I find that this whole recourse to litigation would be unnecessary had the Defendant quietly paid up the Claimant like it held out to do in the letter of cessation of employment. And the attendant cost of recourse to litigation thereby avoided on the part of both parties more so and especially the Claimant to whom the Defendant is hereby ordered to pay cost in the sum of ₦200, 000 within 30 days of the delivery of this judgment.

The claim for damages in the 4^th head of claim is refused as the Claimant had not proved it.

Judgment is entered accordingly.

_____________________________

HON. JUSTICE E. D. E. ISELE

JUDGE