Valentine Ogu -VS- Keystone Bank Ltd

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: THURSDAY 8^TH OCTOBER 2018

SUIT NO.NICN/OW/04/2016

BETWEEN:

VALENTINE OGU………………………………………..CLAIMANT

AND

KEYSTONE BANK LTD………………………………..DEFENDANT

APPEARANCES:

E.O. VAL-OGU WITH I.I. OKOROJI FOR THE CLAIMANT.
I.C. IKE FOR THE DEFENDANT.

JUDGMENT

INTRODUCTION

This suit was commenced by way Complaint on 11^th March 2016. The reliefs claimed in paragraph 23 of the Statement of Facts, wrongly titled “Statement of Claim”, are as follows:

A Declaration that the purported resignation by the claimant from the defendant is involuntary, void and of no effect;
A Declaration that a resignation by the claimant from the defendant will only take effect from the date of compliance with the defendant’s Human Capital Policies And Procedure (HCP) Manual Revised 2013;
A Declaration that the claimant is entitled to be paid all his salaries and entitlements from the defendant until the defendant complies with its Human Capital Policies And Procedure (HCP) Manual Revised 2013 as it affects the claimant in the sum mutually calculated and computed between the claimant and the defendant on the basis of the claimant’s annual total package of N12,511,542.73 (Twelve Million, Five Hundred and Eleven Thousand, Five Hundred and Forty Two Naira, Seventy Three Kobo).
General damages in the sum of N50,000,000.00 (Fifty Million Naira).

The defendant filed its Statement of Defence out of time on 25^th November 2016. It was deemed properly filed and served on the 6^th February 2017. The claimant brought an application to call additional witness, file additional statement on oath, and to deem as properly filed and served, the list of additional witness and the additional witness statement on oath. This application was granted 6^th April 2018. The claimant filed his Reply to the Statement of Defence 28^th February 2018. The case was opened 23^rd May 2017 before His Lordship, Hon. Justice Anuwe, with CW1. CW1 testified on behalf of himself and adopted his witness statement on oath made 11^th March 2016 and the additional deposition made 28^th February 2017. Thereafter, the case was adjourned to 26^th July 2017 for continuation. The matter however came up on the 26^th June 2017. CW1 continued his evidence-in-chief and tendered several exhibits. The case was thereafter adjourned to 4^th and 5^th October 2017 for continuation. However, the matter instead came up on the 17^th October 2017 before me, His Lordship, Hon. Justice Anuwe, having been transferred. On the 5^th March 2018, the counsel to the claimant applied that leave be granted for the parties to adopt the previous proceedings to which the counsel to the defendant concurred. This application was accordingly granted. The matter was thereafter adjourned to 16^th and 19^th March 2018 for cross-examination of CW1.

The matter came up as adjourned on 16^th March 2018. CW1 was cross-examined and there was no re-examination. CW1 was thereafter discharged while the matter was adjourned to 19^th March 2018. On this date, CW2, the second witness for the claimant gave his testimony. He adopted his witness statement on oath made 28^th February 2017 and was thereafter cross-examined. CW2 was re-examined and discharged, and the case of the claimant was closed. Thereafter, the matter was adjourned to 30^th April 2018 and 7^th May 2018 for defence. On the 30^th April 2018, the matter could not go on because the defence did not bring its witness. The matter was therefore adjourned to 7^th May 2018 for the defence. The matter came up as adjourned on the 7^th May 2018. The defence opened with DW1, one Austin Akuma. DW1 adopted his witness statement on oath deposed to 25^th November 2016 and the Certificate of Compliance deposed to 27^th March 2018. DW1 tendered exhibits DWA-DWD and ended his testimony. The matter proceeded to cross-examination. Under cross-examination, DW1 tendered Exhibit XXA. The cross-examination was brought to an end. There was no re-examination. The defence was closed on this note and the matter adjourned to 26^th June 2018 for adoption of the final written addresses. The matter however came up on 17^th July 2018. The adoption of final written addresses could not go on, as the addresses were not ready. For this reason, the matter was further adjourned to 25^th September 2018 for adoption of final written addresses.This could not take place, as I was transferred from the Owerri Judicial Division and was yet to obtain fiat at the date.

Thereafter, the matter was adjourned sine die till the obtainment of fiat. When the fiat was eventually obtained, the matter was fixed for adoption of the final written addresses on 19^th October 2018. It came up as adjourned. On this date, P.O. DURU, holding the brief of I.C. Ike, moved the two motions dated and filed 19^th June 2018 to regularize both the Final Written Address and the Reply on Points of Law filed out of time. The applications were granted as prayed. Thereafter, the P.O. DURU adopted the Final Written Address dated and filed 19^th June 2018 and the Reply on Points of Law dated and filed 28^th August 2018. The learned counsel thereafter urged the Court to dismiss the suit with cost.

Subsequently, the learned counsel for the claimant: N. JONAH-ABOSI applied to make correction on the Final Written Address of the claimant by substituting the phrase “7/01/14 – 12/02/16 be paid to him” which appeared on page 12 of the Final Written Address of the claimant, with ‘until the defendant complies with the HCM’. There being no opposition, the application was granted as prayed. Thereafter, the learned N. JONAH-ABOSI adopted the Final Written Address of the claimant dated 9^th July 2018 and filed 12^th July 2018. The learned counsel urged the Court to grant all the reliefs claimed by the claimant. Thereafter, the case was fixed for 8^th November 2018 for judgment.

CASES MADE OUT BY THE PARTIES

The case of the claimant as made out in his Statement of Facts is that he was a staff of the defendant until the events that led to this suit, and that, throughout his employment with the defendant; he was never queried or reprimanded. It is also the claimant’s case that disengagement in his employment with the defendant was governed by written policy [Exhibit C4] and that he was forced to resign against the provisions of this written policy [HCP], and that, his resignation could only take effect from the date of compliance with the applicable terms of the HCP. The claimant also stated that there is no evidence of remittance of his pension deductions to the National Pensions Fund and that, he was wrongly accused of owing the defendant some debts. The claimants finally claimed that his employment with the defendant remained in force till the date of compliance with the HCP and that; he was subjected to severe hardship as a result of the forced resignation.

On the other hand, the defence, as contained in the Statement of Defence, is that, the claimant voluntarily resigned his appointment and was never forced or unduly influenced to do so. The defendant also made a case that the claimant is indebted to it having taken a loan of N2,200,000.00 [Two Million, Two Hundred Thousand Naira] on 25^th September 2013 while still in the employment of the defendant, which had not been repaid till date and that the claimant was owing it another N5,659,033.79 [Five Million, Six Hundred and Fifty-Nine Thousand, Thirty-Three Naira, Seventy-Nine Kobo] as the cost of the status car and other exposures as at February 2016 before the sudden resignation of the claimant. The defendant also stated that the claimant, contrary to his assertion, had failed to comply with the HCP by refusing to make himself available to it after the sudden resignation, despite repeated requests and that, the pension due to the claimant had been remitted to his Pension Funds Administrator to the claimant’s knowledge. The defendant claimed that, it did not cause any hardship to the claimant as a result of his voluntary resignation. The defendant also claimed one-month salary in lieu of notice against the claimant.

In the Reply filed, the claimant put forward what he believed as answers to the new facts contained in the Statement of Defence and refutation to the defence of the defendant and maintained his claim. At the trial, the parties, through their witnesses, put forward evidence that they believed proved their respective cases and tendered exhibits thought to be in support of their cases and cross-examinations were done. These pieces of evidence shall be referred to in the course of giving my decision as the needs arise. The parties filed their respective final written addresses and adopted them in Court. The next thing is to proceed to summarize these final written addresses before giving my decisions. I start with that of the defendant.

SUMMARIES OF THE FINAL WRITTEN ADDRESSES

A. Final Written Address of the Defendant

I.C. IKE franked the Defendant’s Final Written Address. In arguing the address, the learned counsel formulated two issues, to wit:

Whether by pleadings and evidence led, the Claimant has proved his case?
Whether the Claimant is entitled to the relief sought?

The learned counsel argued the two issues together, notwithstanding that he statedthat he would take the issues separately, as this was not subsequently done. The learned counsel submitted that it was not in dispute that the claimant: was an employee of the defendant, voluntarily resigned his employment, brought this suit two years after the resignation, and the issue of involuntariness of his resignation was raised for the first time at the institution of this suit. The learned counsel argued that, it was an admitted fact too, that the claimant could resign his appointment under the HCP and that, this fact was pleaded by the claimant in paragraph 8 of the Statement of Fact and paragraph 9 of the Witness Deposition and that, under cross-examination, the claimant admitted knowing the procedure in the Bank. Counsel further submitted that the contention of the claimant is that he was forced to resign while that of the defendant is that the claimant voluntarily resigned, though in breach of his terms of service, and that, the question thus raised, is:Who is to be believed?

Counsel argued that arising from this, the onus is on the claimant to prove the involuntariness of his resignation and that; the starting point was the pleading of the claimant and the evidence led. The learned counsel argued that, by virtue of paragraphs 10-12 of the Statement of Facts and paragraphs 10-13 of the Witness Deposition, the claimant had narrated how he was forced to resign but under cross-examination, the claimant admitted that the absence of police or any member of security forces when he resigned and also admitted that, he was in office with the Divisional Head only and that, he was coerced to resign. Counsel submitted that, these pieces of evidence should be regarded as mere assertion without materials to demonstrate their probability. The learned counsel referred the Court to Onuh & Ors. v. Idu & Ors. (2002) FWLR (Pt. 94) 66 at 79-80; International Nigerbuild Construction Company Ltd & Anor v. Giwa (2002) FWLR (Pt. 107) 1312 at 1345; and Chindo World Wide Ltd v. Total Nigeria PLC (2002) FWLR (Pt. 115) 750 at 769.

The learned counsel submitted further that, the allegation of involuntary resignation is an afterthought when viewed from the background that the resignation took place on 12^th February 2014 and this suit was instituted in March 2016, which is a time lag of two years. The learned counsel cited Mogaji v. Odofin (1978) 3 SC 91 on how to appraise evidence. The learned counsel opined that the inaction of the claimant for so long was inconsistent with the natural tendency of human being to be promptly agitated to action in the face of injustice. Counsel argued that it was incongruous that the claimant who claimed to have been forced to resign failed to petition the management of the Bank and that; the claimant affirmed his failure in this respect under cross-examination. The learned counsel submitted further that, while the defendant, in paragraphs 3-7of the Statement of Defence denied the allegation of involuntary resignation, the claimant failed to properly traverse this in his reply, but merely re-affirmed the claims in his Statement of Facts and thereby failed to prove the allegation of involuntariness.

The learned counsel argued that the mere fact that a supervisor suggested the resignation of an employee would not prove that the employee was forced to resign, particularly in view of the fact that the supervisor had no power to sack an employeeas confirmed in the HCP. The learned counsel submitted that, it was only the Bank itself that had the power to terminate appointment.The learned counsel argued that, the signature of the claimant on the letter of resignation, which signature has not been disputed, proved the voluntariness of his resignation. Thelearned counsel submitted further that the evidence of CW2 was hearsay as she was not present at the scene in issue, and that, being a junior officer, she could not have been allowed to be present in a meeting between two senior officers. The counsel submitted that, the absence of CW2 at the scene was proved by the claimant’s statement in paragraph 11 of his disposition that all other staffers were excused before the private meeting.

The learned counsel opined that the evidence of CW2 at paragraph 7 of his deposition and under cross-examination showed that she was not present at the scene and could not have been privy to what transpired apart from the fact that the evidence was contradictory. On the contradiction, the learned counsel cited Jerry Ikuepenikan v. The State (2011) 1 NWLR (Pt. 1229) 449 at 454; Armel’s Transport Ltd v. Martins (1970) 1 NLR 27; and Jolayemi v. Alaoye (2004) 12 NWLR (Pt. 887) 322. The learned counsel submitted that, the evidence of CW2 was hearsay because she did not play any role as she was not present at the meeting but only gave evidence of what she heard by her admission. The learned counsel cited Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 to support the argument that the evidence of CW2 was inadmissible to prove the fact of what transpired at the meeting between the claimant and the Zonal Head. The learned counsel thereafter argued that, even if the claimant was coerced to resign, he had waived his right by the long time lag before he raised the issue. The learned counsel cited Agbakoba v. INEC (2008) 12 SCNJ (Pt. 11) 619 at 652 to buttress his point. The learned counsel argued further that, it was clear by a perusal of Exhibit C5 that, the claimant did not thereby mention that he was coerced and that the law is that, a document is the best proof of its contents – Anyanwu v. Uzonwaka (2009) 7 SCNJ 29 at 44.The learned counsel submitted that, the claimant was in breach of the provisions of paragraphs 4:1, 4.1:1 and 4.1:2 of the HCP [Exhibit C4]in his voluntary resignation. The learned counsel argued that, the claimant failed to give one-month notice of his resignation or pay in lieu thereof and thereby failed to comply with the terms of his employment. The learned counsel cited Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 320; Shitta-Bay v. Federal Public Service Commission (1981) 1 SC 40 and others.

The learned counsel submitted that the claimant’s resignation took effect from January 7 2014,the date he resigned and that, he could not claim salaries for the period after this date and that, as a result, relief No. 2 was not grantable. The learned counsel cited Ondo State Housing Corporation v. Shettu (1994) 1 NWLR (Pt. 321) 476. The learned counsel also urged the Court, by the authority of Fetuga v. University of Ibadan (2000) 13 NWLR (Pt. 683) 118, to hold that, the claimant, having failed to pay the one-month salary in lieu of notice, is indebted to the defendant for the one month salary in lieu of notice. The learned counsel argued that the only inference to be drawn from the claimant’s refusal to make himself available to the defendant in defiance of the HCP is that he was trying to avoid the payment of his debts to the defendant and the surrender of the car. The learned counsel cited Ferrero v. Hankel (2011) 6 SCNJ 1 at 14 and Onyekwelu v. EIF Petroleum (2009) 2 SCNJ 58 at 70 to the effect that, parties are bound by the terms of their agreement. The learned counsel argued that the claimant is in breach of paragraphs 4:0, 4:1 and 4:1:1 of the HCP.

The learned counsel submitted further that a close perusal of Exhibits DWB, DWC and DWD, which are the Statements of Account of the claimant, would show that he was indebted to the defendant and that, the acceptance by the claimant under cross-examination that he received letter of demand for the loan of N2,200,000 and his denial of owing any debt could be resolved by juxtaposition of his statement of account which showed clearly that he was owing the defendant. On this, the learned counsel cited Bunge v. Governor of Rivers State (2006) 12 NWLR (Pt. 995) 573 at 629-630 and Olalenge v. Afro-Continental Nig. Ltd. (1996) 7 NWLR (Pt. 458) 29 at 40, paras. B-C. The learned counsel submitted further that the evidence of the claimant under cross-examination that the debt being claimed from him was spurious and arbitrary, did not,in effect,deny that the debt was owed and that,the further statement that he could not pay such money because he did not take any loan were contrary to his pleadings and as such, had no value and should be discountenanced. The learned counsel cited Okoko v. Dakolo (2006) 14 NWLR (Pt. 1000) 401 at 422, paras. D-E. The learned counsel contended that what the claimant was trying to say was that, what he owed, was less than being demanded, and not that, he did not owe anything. Counsel cited Abibo v. Tamino (1999) 4 NWLR (Pt. 599) 334 at 339, paras. C-E to the effect that, where evidence led by claimant was at variance with the material parts of his pleadings, the implication is that, such claimant has failed to prove his case and that,therefore, the case was liable to be dismissed.

The learned counsel also contended that the claimant admitted under cross-examination that the status car was not a gift but that, the defendant had not written him of its decision whether he should return or retain the car. The learned counsel submitted that, the inference to be drawn thereby is that the claimant was aware that he was not entitled to retain the car after his resignation. The learned counsel submitted that, if the claimant had submitted himself as enjoined by the manual, the car would have been retrieved and that, in any case, the claimant had not complied with the conditions precedent to retaining the car as set out in the HCP, as there was no evidence that the claimant had paid the netbook value of the car in accordance with the HCP. The learned counsel argued that, this fact is obvious from paragraph 15 of the deposition of the claimant.The learned counsel submitted that, Exhibit DWA was therefore issued to remind the claimant of his indebtedness to the Bank, inclusive of the car.

The learned counsel thereafter submitted that relief No. 3 was incomprehensible, vague and nebulous and as such, could not be granted. The learned counsel submitted further that, the claimant having resigned his appointment could not turn round to ask for the arrears of his salaries. The learned counsel argued further that, under master/servant employment, the Court could not force an unwilling staff on the employer and cited Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 599); NNPC v. Idoniboye-Obu (supra) and Shitta-Bay v. FPSC [supra] to buttress his submissions on this score. The learned counsel submitted further that, since the claimant’s employment was not protected by statute, relief 3 could not be granted.

On the issue of damages, the learned counsel argued that, there was absolutely no evidence adduced in proof. The learned counsel cited Kopek Construction Ltd v. Ekisola (2010) 1 SC Pt. 1 and Anambra State Environmental Sanitation Authority & Anor v. Ekwenem (2009) 6-7 SC 5 to argue that, damages are a recompense for a wrong committed by the defendant against the claimant and that, general damages are inferable where evidence is adduced in proof of default on the part of the defendant, and that, in this case, it was clear that, the claimant resigned voluntarily and therefore, there was not fault traceable to the defendant to warrant the grant of general damages. The learned counsel referred the Court to Maja v. Oke (2013) 2-3 MJSC (Pt. 11) 31 at 34; FBN PLC v. Associated Motors Co. Ltd (1998) 10 NWLR (Pt. 570) 441 at 464. The learned counsel subsequently urged the Court to dismiss this claim. The learned counsel finally submitted that, the claimant failed to discharge the burden placed on him by sections 131(1) and 132 of the Evidence Act and then,urged the Court to dismiss the case with punitive cost. There ended the final written address of the defendant. I move to that of the claimant.

B. Final Written Address of the Claimant

D.C. DENWIGWE, SAN and N. JONAH-ABOSI[MISS] franked the final written address of the claimant. The duo formulated two issues, although stated they formulated three. The two issues are as follows:

Whether from the pleadings and evidence on record the resignation of claimant was voluntary?
Whether the claimant is entitled to his reliefs in this case?

In arguing issue 1, the learned counsel stated that it was the person that asserted the affirmative that must prove, whether it was claimant or defendant by virtue of sections 132 and 133 of the Evidence Act and Okechukwu & Sons v. Ndah (1967) N.M.L.R. 368; Kate Enterprise Ltd v. Daewoo (Nig) Ltd (1985) 2 NWLR (Pt. 15) and others. The learned counsel argued that the claimant proved that he was forced to resign through CW2, whose evidence stood the fire of cross-examination. On this, the learned counsel citedGaji v. Paye (2003) 8 NWLR (Pt. 823) 583 at 603-604, paras. F-B, 611 – paras. A-B; Offorlete v. State (2000) 12 N.W.L.R. (Pt. 681) 415; Oludamilola v. State (2010) 8 NWLR (Pt. 1197) 580, paras. C-D; and Nkwa v. COP (1977) NNLR. 90. The learned counsel submitted that, the evidence of CW1, the claimant himself, was not shaken also under cross-examination and cited his answer that something could have happened to him if he failed to sign the resignation letter because one Sunday Agare, the Zonal Control Officer, who is like the Bank’s [defendant’s]police, was invited to witness his refusal to sign, and yet, this Sunday Agare, who remained a staff of the defendant was not called by the defendant to testify. The learned counsel also cited the answers given under cross-examination by CW2 that the claimant was forced to resign and that, she met the claimant and Sunday Agare in the office of the Divisional Head, Mrs. Doris Okafor, and that she heard the claimant loudly asking why the Management should force him to resign.

The learned counsel submitted further that, since the claimant had discharged the burden placed on him, the pendulum shifted to the defendant and that the defendant failed in this respect. The learned counsel relied on section 167 of the Evidence Act and cited AG Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645. The learned counsel also submitted that, it was against natural course of affairs that the claimant would have resigned and that, if Sunday Agare had been called, his evidence would have been against the defendant. The learned counsel said the defendant raised the issue that there was delay in bringing this action and replied that,no limitation law caught this suit and that, no authority was cited by the defendant to back up the claim. The learned counsel argued further that the HCP governed the conditions of service of the claimant and that; the condition precedent thereto ought to be followed in the disengagement of the claimant. The learned counsel relied on paragraphs 4.0,4:1:1, 4:1:2, 4:2:1, 4:1:2, 4:2:1, 4:3, 4:4:1-5:3 of the HCP [Exhibit C4] at p. 71 and Calabar Cement Factory Co Ltd v. Daniels (1991) 4 NWLR (Pt. 188) 750 at 760.

The learned counsel opined that this authority is on all fours with the instant case.The learned counsel argued further that, parties are bound by the terms of their written contract and cited Olaniyan & Ors. v. University of Lagos & Anor (1985) 2 NWLR (Pt. 9) and Calabar Cement Factory v. Daniels [supra]. The learned duo argued that where, in common law employment, the masters terminates, not in line with the agreed terms, damages must be paid. The learned counsel cited Odiase v. Auchi Polytechnic (1998) 4 NWLR (Pt. 547) 477 at 492. The learned duo argued that Exhibit C5, the resignation letter in issue was never signed off or endorsed on by any superior officer or the Human Relations Department of the defendant, and that, this was not in tandem with the HCP 4.1.2 item 13 of Exhibit C4. The learned counsel argued further that, under cross-examination, DW1 confirmed that no superior officer signed off the letter of resignation and that, this translated to the fact that,the defendant never acknowledged it. The learned counsel submitted that, as a result, it meant that, the claimant has not resigned until Exhibit C4 is endorsed. The learned counsel argued that, by this, the claimant had put credible evidence that the purported resignation is null and void. The learned counsel thereafter moved to issue 2.

Arguing issue 2, the learned lawyers submitted that the defendant had woefully failed to prove that the claimant was indebted to it. The learned counsel argued that, where an adversary testified against a party, if the opposing party did not accept the testimony, he must cross-examine the party testifying on the point or in some way show that he did not accept the testimony and that, silence meant acceptance and citedStrabag Const. (Nig.) Ltd v. Adeyefa (2001) 15 NWLR (Pt. 735)to buttress his point. The learned counsel argued that, by paragraph 4 of the Reply to Statement of Defence, the claimant gave the breakdown of how the deductions of 2.2million Naira were made from Exhibit DWB and that, by paragraph 5 thereof stated that the excess/illegal deductions were totaling N539,036.65, and that, these pieces of evidence were not challenged during cross-examination. The learned counsel submitted that evidence not challenged must be accepted and acted on by the Court and cited Chukwu & Anor. v. Diala & Ors. (1999) 6 NWLR (Pt. 608) 674 at 681 and Oludamiloa v. State [supra] 583, paras. A-D and Total Nigeria PLC v. Morka Suit (2002) 9 NWLR (Pt. 773) 492 at 513 and INUA v. FBN [supra].

The learned counsel argued further that it was the policy of the defendant that at the retirement or resignation of a staff, the staff would be asked, if he resigned, to exercise the option of retaining or returning the status car and that, this option was not offered the claimant. The learned counsel said this was contained in paragraph 15 of the Statement of Facts. The learned counsel submitted that, by virtue of the foregoing, the claimant could not be asked to pay for the status car, which was not a loan to the claimant but remained the property of the defendant. The learned counsel argued that, since the status car was not a loan, the claimant was entitled to retain it and pay the depreciated value.The learned counsel submitted that thus, the claimant proved that it was not owing the defendant the sum of N5,659,033.79. The learned counsel submitted further that, it was even the duty of the defendant to prove how this sum came to be owed since he who asserts must prove. On this, the learned counsel cited Okechukwu and Sons v. Ndah [supra] and Kate Enterprises Ltd v. Daewoo (Nig.) Ltd [supra] and submitted that, since the defendant had no counter-claim or set off in this suit, the Court was estopped from granting a relief not claimed. The learned counsel also cited Ekpeyong & Ors v. Nyong (1975) 2SC 71 at 80-84.

The learned counsel submitted that, although DW1 was a competent witness but his evidence was not credible. This, the learned counsel said wasso, because DW1 said he was at the defendant’s branch in Umiahia on the date of the incident in issue and not at the scene of the incident, thus making this piece of evidence hearsay. The learned counsel also said DW1 admitted under cross-examination that Mrs. Noris Okafor and Mr. Sunday Agare were still in the service of the defendant. Counsel submitted that, it was unnatural for the defendant not to call Mrs. Noris Okafor and Mr. Sunday Agare, who were still in their service and directly involved in the issue at hand by virtue of section 167 of the Evidence Act. The learned counsel cited Utteh v. State (1992) 2 NWLR (Pt. 223) 257 at 273. The learned counsel argued further that, the claimant proved his entitlement to the reliefs claimed by virtue of Exhibits DWA and XXA, which are titled “End of Service Advice”. It was argued further that, under the HCP, end of service advice ought to be computed and advice given to the claimant within two weeksby virtue of paragraphs 4.1.2 (item 13) and 6.1.9 of the HCPM [Exhibit C4] and that, Exhibit DW4 was only sent to the claimant after 24 months of the claimant’s forceful resignation; and that, as such, the claimant was entitled to all his salaries and entitlements until the defendant complied with the HCM.

The learned counsel argued further that, the defendant tendered Exhibit DWA and the claimant tendered Exhibit XXA and a comparison of both would reveal that the narration/remark column of Exhibit DWA had been cut out while that of Exhibit XXA remained intact. Counsel submitted that the inference to be drawn is that, Exhibit DWA was altered in order to deceive the Court and thus, the evidence of DW1 was not reliable and did not deserve credibility. On this,counsel cited Ezemba v. Ibeneme (2000) 10 NWLR (Pt. 674) 61 at 74. The learned counsel subsequently urged the Court to believe the evidence of CW1 and CW2 [whom they wrongly called PW1 and PW2]. The learned counsel equally urged the Court to hold that, the resignation of the claimant was forced and that, the resignation was not endorsed as required. The learned counsel finally argued that, the claimant was entitled to all the reliefs claimed.Having carefully summarized the written address of the claimant’s counsel in reaction to that of the defendant’s counsel, the next in line is the reply on points of law filed by the counsel to the defendant.

C. Reply on Points of Law

I.C. IKE franked the undated Reply on Points of Law.The learned counsel submitted that the a counter-claim, being an independent action, does not depend on the substantive claim and that,the mere fact there is no counter-claim,would not estop the defendant from bringing a fresh action to claim the reliefs against the claimant. In support of these contentions, the learned counsel cited Gowon v. Ike-Okongwa[sic] (2003) 104 LRCN 10.

Having carefully summarized the final written addresses of the parties and the Reply on Points of Law, the next thing is to give my decision on the merit of the case. In doing this, I wish to state that, I have given careful consideration to all the processes connected with the suit and have also carefully read and digested the pleadings of the parties, their respective depositions and cross-examinations and the final written addresses of the parties. I have also carefully perused most of the authorities cited. In the course of giving my decision, I shall make references to these processes and the pieces of evidence as the needs arise.

DECISION OF THE COURT

I cannot find any difference in the issues formulated by both sides. I therefore adopt that of the defendant. They are:

Whether by pleadings and evidence led, the claimant has proved his case?
Whether the claimant is entitled to the relief sought?

I shall however take the two issues together because issue 2 is an appendage of issue 1. It is not in doubt that, the nature of a case and the issues arising from the pleadings determine the type of evidence to be adduced in proof of a case. From the pleadings and the evidence led, in the instant case, it is common ground between the parties that the claimant signed a letter of resignation. The issues thrown up is whether or not the claimant was forced to sign this purported letter of resignation and whether the delay in in challenging this purported forcible resignation is fatal to the action. These being the actual state of the matter, the evidence must be geared to answer these questions. Failure in this regard is fatal.

I shall therefore examine the question of time lag before the claimant challenged the purported forced resignation. This is because, this question, if resolved in favour of the defendant, nullifies the need to treat the issue of coercion or undue influence. The defendant puts the time lag at two years. The claimant did not counter this assertion. Instead, the claimant’s counsel argued that any statute of limitation did not catch the action,and that,no statute of limitation was pleaded nor authority cited in this regard by the defendant. I must state that the claimant’s counsel missed the point in issue. The defendant, in my own understanding, did not raise the issue of any limitation law at all. What was raised is the issue of absence of coercion [duress] and if, ratification of the coercive or forced resignation by reason of time lag. Thus, the issue of duress in contract and when to challenge it is in focus here. Let us look at some authorities relevant to the issue. Santrade Investments Ltd & Ors. v. Tino Electronics Nigeria Ltd (2010) LPELR-4931 (CA) 25, paras. D-Fheld, and I quote:

Thus, the purported agreement which was drafted by the Appellant’s counsel in consequence of the 2^nd Appellant’s arrest and detention at the CID Force HDS, Alagbon Close, Ikoyi, Lagos, is not capable of being considered and enforced as a valid admission, it is most undoubtedly, a voidable document…Any document signed in the presence of the police and relating to a civil claim shall be viewed with suspect particularly to the persons against whom it will affect was in custody or under some detention or handicap that he cannot freely enter into a contract what with enforcement officers breathing down his neck. Any document that seeks to establish the existence of a contractual relationship which takes place under the very watchful eyes of the police to whom a purely civil matter is brought to its attention to enforce or put the fear of God into the other side will certainly not be enforced as there is no consensus and is voidable.

In CCC Thrift & Credit Society & Ors. v. Ekpo (2001) LPELR-6984 (CA) 38-39, paras. D-C, the Court of Appeal held thus:

“Indeed, I frown at the conduct of the appellants in compromising with the respondent and the police the case of fraud and embezzlement reported against the respondent, and their colluding with the respondent to give away his property by signing Exhibit A, without prosecuting the respondent for the criminal allegations in a court of law. Then after about eight years of signing Exhibit A, the respondent was aroused from his complacency to challenge in the court his signature on Exhibit A, claiming that it was procured by duress or coercion on him. It is apparent to me from the surrounding facts of this case, that the parties were interested in settling criminal allegations against the respondent out of court by agreeing with the respondent to sign Exhibit A and also make Exhibit B (the Statutory Declaration of House Ownership) in discharge of the purported debt of N80,000.00 owed by the respondent to the 1^st appellant, which sum of money was equivalent to the said sum of N80,000.00 allegedly defrauded and embezzled by the respondent, rather than prosecute the respondent in the court. The whole idea behind the execution of Exhibit A was to conceal the true facts and show the existence of an imaginary debt of N80,000.00 by the respondent to the 1^st appellant, when in actual fact there was none. In my view, therefore, the respondent did not on the evidence before the court below prove that there was duress on him to entitle him to judgment on that score.” [Underlining for emphasis]

In Santrade Investments Ltd [supra], the issue of not acting in time to challenge coercion was raised but was not considered by the Court of Appeal in arriving at its decision. The Court of Appeal therein arrived at its decision solely based on the infringement of the fundamental right of the appellant and the intervention of the police to coerce the appellant in purely civil case to execute the agreement therein in issue. Whereas, in CCC Thrift & Credit Society [supra], it is clear that, amongst the reasons why the Court of Appeal reached the decision that coercion was not proved in the case was the fact that, the respondent was challenging the alleged duress for the first time after 8 years. In the two cases, it was clear that, external forces, apart from the contracting parties were involved and that, actual violation of the victims’ fundamental rights to freedom of free movement was involved. In the instant case, the allegation of threat and the coercion to sign the letter of termination were all between the contracting parties without the interposition of any external force. There was no allegation of confinement of the claimant herein or any slight violation of his freedom of movement or threat of violence to his person.

It would appear from the evidence on record, there was no allegation that the Mrs. Doris Okafor [Zonal Head] and Mr. Sunday Agare, whom the claimant alleged collaborated in threatening him to sign the letter of resignation on the threat that, otherwise his appointment would be terminated for insubordination, were holding any instrument of violence to threaten the claimant or that the claimant was confined, and neither did the claimant state that he was coerced otherwise than by the threat of his appointment being terminated for insubordination if he did not resign.So, I wonder what this alleged threat was all about. For reasons best known to both parties, the Court is kept in the dark as to what gave rise to the alleged threat. I am not therefore convinced that an adult could be coerced simply by mere oral threat of being sacked to sign a letter of resignation and even if this is so, I found it difficult to fathom why the claimant took two years to realize that he was forced/coerced to sign the said letter of resignation.

Now, it is also not in dispute that the claimant signed this letter of resignation and proceeded home without any complaint for two solid years and that, the claimant only woke up from his slumber when he was asked to repay certain alleged debts. It was at this point that the claimant brought this suit to challenge his alleged coercion to resign by asking the Court to compel the defendant to pay him salaries and allowances from the purported date of his forcible resignation since, in his view, he had not resigned. It is thus clear from the scenario that, if the defendant had not demanded for the alleged debts, the claimant would have been home and dry with the resignation. The suit, is in essence, the claimant’s answer to the demands of the defendants: an-eye-for-an-eye sort of thing. It is undoubtedly the law that duress or coercion in contract must be challenged timeously otherwise, the victim would be held to have ratified the contract induced by the said duress/coercion or undue influence.This is made clear in the underlined portion of CCC Thrift & Credit Society [supra] cited above. In the instant case, two years after the alleged duress, the claimant kept quiet and acquiesced in the alleged forcible resignation and went home with the defendant’s car.

The claimant was apparently satisfied with the situation of things until he was asked to refund some monies. It was then, he belatedlyrealized he was forced to resign and filed this suit claiming that he was even forced to resign and that his resignation, which was never in tandem with the provisions of the HCP, could never take effect until the provisions of the HCP violated were complied with and therefore, he should be paid his salaries and allowances for all the period starting from the date he was purportedly forced to sign the resignation letter till date.It is curious that the claimant did not explain what prevented him for the two years from challenging his alleged forcible resignation. This is a serious gapping hole. The claimant did not meet the challenge that he acquiesced his forcible resignation. All that his counsel did in the address was to argue that no limitation law affected the suit, leaving out the issue of ratification of the coercion/duress or adoption of the forced resignation. It is my view that, even if there was any coercion/undue influence that induced the claimant to sign the letter of resignation, the claimant had acquiesced by conduct and therefore ratified and adopted the forced resignation.It is clear that, if no demand had been made for repayment of the alleged debts, the claimant was quite satisfied with the state of things; and that, the grouse of the claimant is, logically, that, if the defendant would not let him be, by now raising the issue of his alleged indebtedness, he too would renege on his resignation and claim for arrears of salaries, since both parties did not comply with the HCP. That is the axiom of the present suit.

The learned counsel to the claimant has forgotten that the relationship in issue is mainly contractual and that, parties are at liberty to alter their terms of contract at any time. The argument that because the resignation failed to comply with the HCP,that, as such, the claimant remained in service would not hold, because by signing this letter and acquiescing in the alleged coercion, and the defendant accepting this,both parties have altered the aspects of the HCPdealing with the mode and procedures of resignation and the consequential effect thereto. For a Court not to reach this conclusion is the whole essence why the law, in its wisdom, says coercion/undue influence in contracts must be promptly protested and the contract renounced within the shortest time after the cessation of the coercion/undue influence, otherwise, the parties would be held to have voluntarily entered into the contract. The coercion/undue influence ceased on 08/01/2014, the very day the letter was signed, there being no explanation as to what prevented the claimant from reneging and challenging the purported forced resignation thereafter, the purported forced resignation is ratified and adopted as the new contract between the parties.

After all, a written contract could always be altered in writing, the signed letter, constitutes the alteration in this regard. Even if that is not the law, the doctrine of ratification of duress in contract must be read to have impliedly negated these aspects of the written contract [the HCP] that would have produced the weird result of asking an employer to pay an employee for two years that he did not work on the ground of forced resignation, which surprisingly was not challenged for two years and with no proof at all, as to why he failed to challenge the alleged duress for two solid years!It would be unconscionable in the extreme and totally unfair and contrary to section 254C-1(f) of the 1999 Constitution, which enjoins the Court to prevent unfair labour practices in tandem with international best practices to hold that the claimant had not resigned under these circumstances. I therefore hold that the claim of coercion/duress/undue influence fails and that, the claimant is therefore not entitled to all the reliefs claimed.The two issues are therefore resolved against the claimant and in favour of the defendant. The suit is therefore dismissed in its entirety.

I now come to the issue of indebtedness of the claimant to the defendant. This aspect of the defence has two heads: (1) that the claimant was liable to pay the for the status car, and (2) that,the claimant took a loan which he had not repaid. The claimant had denied these. I shall not waste any time in answering this. I have no hesitation in agreeing with the learned counsel to the claimant that these claims must fail. It is clear from the nature of the claim from the Statement of Defence, the evidence and the arguments canvassed in support that, the defendant was either counterclaiming or setting off, as neither was distinctly pleaded. It should be noted that the claimant did not make as part of his case any claim relating to the status car or the taking of any loan for the car. It is also clear that the claimant did not raise the issue of any other loan taken from the defendant. The only issue raised by the claimant was that of duress and the reliefs claimed all related to the duress.

So, in meeting the case of the claimant, the defendant is limited to the claim and reliefs brought up by the claimant. So, as it is, the issue of indebtedness of the claimant to the defendant is either a setoff or counterclaim. If a set-off, it cannot be granted where the case of the claimant is dismissed – see FBN PLC v. I.A.S. Cargo Airline Nigeria Ltd (2011) LPELR-9827 (CA) 26, para. E;31, paras. B-D. In case, the issue of indebtedness of the claimant to the defendant being a counterclaim on which the defendant could have ordinarily filed a suit, regardless of the suit of the claimant; a counterclaim,being an independent suit, with its separate existence, apart from the suit in which it was brought, and only brought in such suit for convenience and to maximize time, it must be distinctly made in the Statement of Defence and reliefs framed for it, as in an independent and separate suit;and must be flied in accordance with the rules of the court– see Order 31, Rule 1(1) and Order 32, Rule 4 of the NICN Rules;Ali v. Salihu & Ors (2010) LPELR-3744 (CA) 19, paras. C-E; andAremu v. Chukwu (2011) LPELR-3862 (CA) 35-36, paras. F-A.Now, the defendant claimed that the claimant was indebted to it – see paragraphs 9, 10, 13, 18, 20 and 23 of the Statement of Defence.

But surprisingly the defendant did not state specifically whether it was claiming for setoff or counterclaim,thus infringing both the rules of this Court and the authorities cited above. The defendant too, did not make any prayer that the claimant be ordered to make any payment to it in its Statement of Defence, save the counsel’s address that, the claimant be ordered to pay the one month salary in lie of notice. It is trite that, a relief not claimed, cannot be granted by the Court and that, counsel’s address is not a substitute. None of the required trappings for either setoff or counterclaim is apparent in thecross-claims brought by the defendant. And like an independent action, separate fee must be paid for them, different from the fee paid for the Statement of Defence. I mean, in addition to the fee for the Statement of Defence, another and separate fee must be paid for the cross-claims – Udofel Ltd & Anor v. Skye Bank PLC (2014) LPELR-22742 (CA) 48-49, Paras. G-A.

“Payment of filing fees is mandatory and a precondition or condition precedent to the assumption of jurisdiction by court. Where, therefore, filing fees are not paid, a court of law will have no jurisdiction to entertain the matter before it. If however the non-payment of fees is with respect to only part of the reliefs sought, then the court cannot entertain those reliefs.

Having not paid a separate filing fees on the counter-claim, the court therefore lacked the jurisdiction to recognize and act on the counter-claim.”

It is also the law that in either setoff or counterclaim, the rules are the same – FBN PLC v. I.A.S. Cargo Airlines Nigeria Ltd [supra] 27, paras. D-F. Apart from not bringing the purported setoff or counterclaims in accordance with the rules of this Court and failing to pay the appropriate filing fee for it, there is equally no relief claimed or framed in respect of the counterclaim or setoff. The Court, not being a Father Christmas, cannot grant a relief not claimed – Luna v. C.O.P. Rivers (2010) LPELR-8642 (CA) 12-13, paras. G-B.It simply goes to show that these claims amount to an abuse of the process of the Court. Hence, the argument of counsel in his reply that the defendant could still bring another action in respect of these claims after all the anomalies associated with them is an acceptance that the defendant was just playing game with the claims. The defendant was just forum-shopping on the claims, testing the ground to see where the pendulum swings. If favourable, good, but if unfavourable, the liberty to bring up another action on the same issue is retained. This explains the reason why the counsel was ambivalent of what it was claiming, whether set off or counterclaim.Being that the law is that once the main action is dismissed, the setoff goes with it, and being the law too is that, a counter claim or set off must be specifically pleaded and separate filing fee paid thereof,it is clear that the Court cannot grant the claims of the defendant for the allegeddebts in issue whether they fall under set-off or counter-claim. The claims are therefore dismissed in their entirety as abuse of process.

Where a defendant claimed in setoff and it fails, I do not think it is the law that such defendant can bring up the same issue again to be litigated allover as counterclaim. If this were the position, the Court would unwittingly encourage endless litigation on the same issue and facts. It is therefore the duty of counsel to the defendant who wishes to raise either set-off or counterclaim to distinctly make out which one of the two the defendant wishes to pursue. Once both are lump up or setoff is claimed and it is dismissed, it would be wrong to come up with the same claim again as counter claim, thereby wasting precious judicial time in trying the same issue twice and to the annoyance of the other side.The facts of this case are that the rules and laws were not complied with in bringing the facts, which raised the issue of either setoff or counterclaim in the instant case.

Hence, as the Court has held, either the facts related to counterclaim or setoff, they did not satisfy the rules and principles of law relating thereto, and the claims were accordingly dismissed. In this regard, a distinction must be made between a situation where the defendant had not raised the issue at all in the earlier case but subsequently filed a fresh suit to raise the issue from the situation at hand, where the issue had been raised and dismissed. The case of Gowon v. Ike-Okongwu (2003) 104 LRCN 10cited by the counsel to the defendant, which is reported also as (2003) LPELR-1336 (SC) [the version I consulted] does not in any way support the proposition of the learned counsel to the defendant. Apart from the fact that the facts that gave rise to the counterclaim therein were subsequent to the main action whereas, in the instant case, the facts that gave rise to the issue arose prior to the instant action, there is also the fact that, the counsel to the defendant in the instant case proposed that the same issue could be raised twice, initially as setoff in the original suit and when that fails, another action could be brought where the same facts would be raised as a counterclaim in a fresh suit.

Let me state too,in support of the above,that, the circumstances of this case is such that, the defendant cannot in all sense of fairness and equity lay any of these demands. By arguing that the claimant had voluntarily resigned even against the tenor of the HCP and this, having been upheld in its favour, the corollary is that, the defendant too, had waived all the irregularities arising from the irregular resignation and accepted them as they were. That is to say, new contract was thereby created between the parties in the written irregular resignation. After all, the parties were always at liberty to amend their written contract or any part of it and exchange such with another written contract, which is what has happened in the written resignation and the attendant subsequent actions/inactions of the parties. The defendant knowing fully well accepted the purported irregular resignation. Itcould not accept the irregular resignation and reject an aspect of it. Having persuaded the Court to uphold the irregular resignation against the claimant by reason of the claimant’s waiver of his right due to lag of time to challenge the irregular resignation, the defendant could not turn round to urge the Court to hold against the claimant at the same time, its own acts/omissionsarising from the irregular resignation, that amounted to waiver too.

If it took the defendant more than two years to wake up from its slumber to demand the payment of the alleged debts from the claimant, whom it claimed irregularly resigned – see Exhibit DWA written on May 10 2016 and which stated that the claimant resigned January 7 2014. It simply meant that the resignation and all its irregularities were accepted as the new contract between the parties. After all, the defendant was not unaware that the claimant did not hand over the status car and neither was it unaware of the alleged debts before it accepted the irregular resignation.More so, the defendant did not claim any coercion that dissuaded it from asserting its rights for two years. The defendant cannot blow hot and cold on the same issue. The defendant could not accept the resignation in one breadth and be heard at another breadth to complain about it not been in accordance with the HCP. The defendant cannot take the aspect of the irregular resignation that favoured it and at the same time reject the aspect that did not favour it. The package must be taken as a composite whole. This principle is well enunciated in Fayemi & Anor. v. Oni & Ors. (2010) LPELR-4145 (CA) paras. E-G, where the Court of Appeal held that:

“Where a person having full knowledge of his rights, interests, profits or benefits conferred or accruing to him by and under the law but he intentionally decides to give up all these or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights. Therefore a person will generally not be allowed to complain of an irregularity he himself accepted and condoned.”

The above position is in tandem with the dictates of section 169 of the Evidence Act 2011, which the Court of Appeal recently interpreted in Suit No. CA/A/795/2015 – Tukur v. the Kaduna Polytechnic & 2 ors. delivered by the Abuja Division on 30^th July 2018, p. 39 by adopting the ratio of the Supreme Court in Re: Apeh (2017) 11 NWLR (Pt. 1576) 3112 to the effect that:

“The effect of exhibit CA2, in my view, is that it operates as estoppels by conduct, the type of estoppels contemplated by section 163, Evidence Act 2011. That is: a party who has, either by his declaration or act, caused or permitted another to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of the thing, he must accept the new legal relationship as modified by his own words or action, whether or not it is supported by any point of law, or by any consideration but only by his word or conduct…These applicants herein, represented by the 2^nd set of respondents, in view of exhibit CA2, cannot be allowed to approbate and reprobate at the same time. They are stopped by operation of exhibit CA2”.

The defendant is therefore estopped by virtue of Exhibit C5 and its subsequent attitude or conduct from challenging the present state of affairs created by its own actions/inactions. For this additional reason, the cross-claims of the defendants are equally dismissed. Each is party to bear his/its cost.

Judgment is entered accordingly.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Judge

NATIONAL INDUSTRIAL COURT OF NIGERIA