IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: APRIL 25, 2018

 

SUIT NO. NICN/LA/291/2016

 

BETWEEN

Joseph Okafor-                                               Claimant

 

AND

Nigerian Aviation Handling Company Plc                         -Defendant

 

REPRESENTATION

Olukunle Olatunji, with Kayode Otufale, for the claimant.

1. J. Owonikoko SAN, with I. J. Okechukwu and Miss V. C. Mbaezue, for the defendant.

 

JUDGMENT

1. On 6th May 2016, the claimant filed a complaint against the defendant together with the accompanying statement of facts, list of witnesses, claimant’s statement on oath, list of documents and copies of the documents. By the statement of facts, the claimant is praying for the following reliefs:

• A declaration that the defendant breached the terms of employment between it and the claimant.
• A declaration that the acts of the defendant against the claimant during his employment with the defendant constituted acts of unfair labour practices.
• A declaration that the actions and inaction of the defendant led to the constructive unfair dismissal of the claimant from the employment of the defendant.
• An order directing the defendant to pay the sum of N50,000,000.00 (Fifty Million Naira) to the claimant as damages for unfair labour practice and constructive dismissal.
• An order directing the defendant to pay the sum of N5,000,000.00 (Five Million Naira) to the claimant being the cost of this action.

 

2. In reaction, the defendant entered formal appearance and filed its statement of defence, list of witness(es), witness statement on oath, list of documents and copies of the documents. To all of this, the claimant filed his reply to the statement of defence, further witness statement on oath, additional list of documents and copies of the additional documents.

 

3. At the trial, the claimant testified on his own behalf as CW and tendered Exhibits C1 to C21, while Wole Eniafe, Head Human Resources and Organizational Development of the defendant, testified for the defendant as DW and tendered Exhibits D1 to D14(a) inclusive. At the close of trial, parties filed their respective final written addresses. The defendant’s final written address was filed on 12th December 2017, while the claimant’s was filed on 16th January 2018. The defendant’s reply on points of law was filed on 25th January 2018.

 

THE CASE OF THE CLAIMANT

4. The claimant is a former employee of the defendant.He was employed via an “Offer of Employment” letter dated 10th December 2007 as a Senior Legal Officer with effect from 3rd January 2008. By a letter dated 2nd November 2015 the claimant notified the defendant of his intention to resign from the employment of the defendant effective from 31st December 2015.The reasons stated in the said resignation letter for his abrupt exit were as follows:

• Non-appreciation of his services by Executive Management
• Stagnation in Grade since 2009
• Repeated victimizations
• Derailment of his career in a bizarre, irregular, unjustified and inexplicable manner, amongst other grievances.

That in accepting the claimant’s letter of resignation, the defendant wrote a letter dated 29th December 2015 where the defendant simply said as follows: “Please be advised that Management has accepted your resignation of appointment with effect from 31st December 2015”.That none of the issues raised in the resignation letter as basis for exiting the defendant was debunked or addressed howsoever. To the claimant then, while in the employment of the defendant, the latter breached his job description which resulted in the retardation and derailment of his professional career growth. That the defendant failed to address his grievances with regard to his several transfers to various departments of the defendant's company; and the defendant denied him his promotion and entitlement while in the employment of the defendant. In all of this, that the defendant’s action and inaction while in its employment led to his constructive dismissal, hence this suit.

 

5. To the claimant, his case is that he was an employee of the defendant until his constructive dismissal on 31st December 2015. That prior to his employment as Senior Legal Officer by the defendant,the had a thriving corporate legal practice.That the defendant committed serial breaches of the contract of employment between it and the claimant, which prompted his constructive dismissal on 31st of December 2015. Accordingly, the grounds of his action against the defendant are:breach of job description and deliberate retardation of his professional growth; denial of promotion and entitlement; and failure to address claimant’s grievances.That the defendant’s actions and inactions retarded his professional growth over the years owing to the incessant, unreasonable and unjustifiable transfers to Departments within the defendant that are not related to or connected with the claimant’s job description or professional training. That he is entitled to damages against the defendant for his constructive dismissal which has taken its toll on his career development, the defendant having derailed his career life for two (2) years for no justification.

 

THE CASE OF THE DEFENDANT

6. On its part, the defendant’s case is at all times material, the defendant acted in accordance with provisions of Exhibit D1, the conditions of service.That the claimant voluntarily resigned from the employment of the defendant and was not dismissed in any manner whatsoever. That in the course of his employment, the claimant was justifiably transferred to three other departments within the defendant when the need arose and as contemplated in Exhibit D1. That even though the claimant was transferred to three other departments of the defendant when occasion demanded, he was invariably still re-deployed to the Legal Services Department at which he was, in fact, the pioneer head of the Secretariat when it gained full autonomy as an independent department. The redeployment of the claimant to the Legal Services Department is as shown in Exhibit D4.That there was never a formal complaint lodged to the defendant from the claimant with regard to his transfers to the other departments.The defendant as shown in Exhibits D5, D6, D7 and D8, D8(a), D8(b) and D8(b) sponsored the claimant to attend various trainings, three of which optimally equipped him to fit into any department of the defendant he is deployed to.That the marked-effect of the various workshops and training which the claimant was sponsored to attend is evident in Exhibits D2 and D3with a Certificate of Identification marked Exhibit D(a) attached in compliance with section 84 of the Evidence Act 2011(as amended). That upon internal approval process of the defendant, the claimant was assigned a brand new vehicle as shown in Exhibit D9 and the vehicle title eventually transferred to him in line with the defendant’s monetization policy for its managers (the claimant being a generalist staff on the managerial stream of the defendant) and evidence of this is contained in Exhibits D10 -D10(g) and D11-D11(d). That by a voluntary resignation of the claimant from the defendant’s company in December 2015 he was paid an exit package/ex gratia sum of Three Million, One Hundred and Seven-One Thousand, One Hundred and Eighty Naira, Ninety Kobo as shown in Exhibits D12 and D13. That demonstrating a consensual and rancor free exit from the defendant's company, the claimant addressed Exhibit D14 to the defendant which was relied upon by the defendant’s witness (DW) as his evidence during trial and attached thereto a certificate of identification admitted as Exhibit D14(a).In consequence whereof, the defendant urged the Court to dismiss the claimant’s claim as he is not entitled to any benefit from it as the action is misconceived in law, vexatious and totally lacking in merit.

 

THE SUBMISSIONS OF THE DEFENDANT

7. In making its submissions, the defendant first urged the Court to note that claimant failed to produce the originals of his Job Performance Appraisal sheets for the year 2013 and 2014 hence the defendant tendered the computer printout of Exhibit D3 attaching a Certificate of Identification (in compliance with section 84 of the Evidence Act 2011) marked as Exhibit D2(a). That a cursory look at the defendant’s pleadings reveals that the claimant was given a notice to produce at the hearing of the suit such documents pertaining to his employment and expected to be in his possession. That the Court of Appeal has endorsed the practice of giving in pleadings notice to produce document expected to be in the adverse party’s possession, citing Gbadamosi v. Kabo Travels Ltd[2000] 8 NWLR (Pt. 668) 243 and Order 40 Rule 29 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. That in the absence of the originals of Exhibits D2 and D2 (sic), the defendant will be relying on the secondary evidence which are the photocopies of the respective documents, referring to Onwuzuruike v. Edoziem[2016] 6 NWLR (Pt. 1508) 215 at 229.

 

8. The defendant continued that in the course of trial, CW tendered the following unsigned documents: Exhibit C13- Memo dated 29thJune 2015 requesting Airside Drivers training; Exhibit C19 -Memo dated 10thSeptember 2014; and Exhibit C21 - Memo dated 17thApril 2015 requesting ODC Changes in Lagos Station. That it is a settled principle of law that an unsigned document is as good as a worthless paper which carries no probative value. It is incapable of being used to prove anything in law and once apprehended, ought to be expunged from the records or no probative value will be attached to it, citing Osadare v. Liquidator, Nigeria Paper Mills Ltd [2012] 27 NLLR (Pt. 77) 174. That it is an unreliable document and as a result all submissions on the document go to no issue, referring toLasun &ors v. Wema Bank Plc[2012] 26 NLLR (Pt. 74) 218 and Ogaga v. Jopa Energy Ltd [2014] 47 NLLR (Pt. 154) 601 NIC at 624. That where a court is faced with an unsigned document tendered as evidence by a party, the pronouncement to make is a rejection of such document, urging the Court to so hold, citingMariam v. University of Ilorin Teaching Hospital Mgt. Board [2013] 35 NLLR (Pt. 107) 40 at 132 and Omoudu v. Obayan & ors [2016] 65 NLLR (Pt. 231) 408 at 457-458.

 

9. The defendant proceeded to submit a sole issue for determination: Whether on a holistic evaluation of the evidence led, the claimant has proved his case of constructive unfair dismissal and damages against the defendant. To the defendant, the complaint disclosed by the claimant on his pleadings and evidence led during trial turns on constructive dismissal by the defendant based on what was alleged to be unfair labour practices whilst in the employment of the defendant.That although the claimant also claims unfair dismissal, the facts of the case (even if accepted) cannot advance that cause of action. That in case of unfair dismissal, the dismissal must have been at the instance of employer in circumstances where a specific law recognises a protection of the employee from the infraction committed by the dismissal. That in the instant case, the claimant was not terminated or dismissed by the employer- he chose to resign. That unfair labour practice as applied in Nigeria labour jurisprudence has always been anchored on a specific law, regulation or international Convention that can be shown to be applicable to the employee suing, referring to Newsletter of the IBA Legal Practice Division, Vol. 5 No. 1, April 2015 at pages 28-30 andIscare Nig Ltd v. Victoria Omotayo Akinsanya & anor unreported Suit No. NICN/LA/484/2012, the judgment of which was delivered on 19th May 2017. That such must be disclosed by the employee in his pleading. There is none so disclosed in this case. In any case, that it would be incongruous to plead unfair dismissal and constructive dismissal at the same time. It will amount to inconsistent pleading which can only be pursued as alternative. In this case, that the claimant’s reliefs 2 and 3 in his complaint predicates his case on the two without indicating or appreciating that both cannot avail him cumulatively - but as alternatives. Even the relief for constructive dismissal was couched confusinglyby adding unfairness to it. That will be importing test of reasonableness which the law has moved away from in such claims.

 

10. The defendant went on that the claimant contends, in the main, that his three transfers to three different departments of the defendant within the Lagos office alone in eight (8) years was targeted at frustrating him out of the defendant which ultimately occurred on 31st December 2015 by his voluntary resignation from the employment of the defendant. That the claimant at paragraph 9 of the statement of factssets out the grounds of his claim for constructive dismissal by the defendant thus: breach of job description and deliberate retardation of the claimant’s professionalgrowth; denial of promotion and entitlement; and failure to address the claimant’s grievances.

 

11. On the principles of constructive dismissal, the defendant submitted that constructive dismissal is also referred to in Nigeria as forced resignation, referring toRecent Development in Nigerian Labour Law, Hybrid Consult 2017 pages 53-54. That it is a species of termination of appointment/employment where an employee terminates the contract of employment with or without notice under circumstances induced by the employer’s conduct, citing the locus classicus decision of Lord Denning (The Master of the Rolls) in Western Excavations v. Colins John Sharp[1977] EWCA Civ 165 andUkoji v. Standard Alliance Life Assurance Co. Ltd[2014] 47 NLLR (Pt. 154) 531 at 556. That the learned authors, Simon Deakin and Gillian S. Morris in the seminal book,Labour Law, 5th Edition define constructive dismissal thus: “There is a dismissal where employee terminates the contract, either with or without notice, in circumstances in which he is entitled to terminate it without notice because of the employer’s conduct”. That the doctrine has crystallised from its earlier test of unreasonableness of the employer’s conduct to the currently acceptable test of contractual repudiatory right. In other words, an employee who alleges constructive dismissal must show that his dismissal was an immediate result of breach of contract of employment by the employer entitling him to repudiate the contract, citingDryden v. Greater Glasgow Health Board [1992] IRLR 469, EAT.That the employee must leave in response to the breach of contract. Accordingly, a delay in so leaving the employment may amount to waiver of the breach and affirmation of the contract. That delay may be excused where the employee stays on to work under protest when trying to resolve matters before leaving or where he is seeking other work before leaving, citingHalsbury’s Laws of England, 4th Edition (2000 Reissue) Vol. 16 at para. 478.

 

12. That the Courts in England have thus set out four classic elements of constructive dismissal as expressed by Lord Denning inWestern Excavation, which are now regarded as formulations of constructive dismissal test:

• There must be a breach of contract by the employer; this can be an actual or an anticipatory breach.
• The breach must be sufficiently serious, namely, a repudiatory or a fundamental breach, or the last of a series of breaches, which taken together form sufficiently serious conduct by the employer (known as the ‘last straw’ concept - see Lewis v. Motorworld Garages Ltd [1985] IRLR 465 CA).
• The employee must leave as a result of the breach.
• There must be no waiver of the breach, for example, through the employee’s delay in leaving.

That from the foregoing, therefore, for the claimant to be successful in this action, he is under a duty to demonstrate to the Court that the defendant was in breach of the contract of employment with the claimant and that it was as a result of the breach that the claimant left the employment of the defendant. That the claimant must locate and tie his three grounds of claim of constructive dismissal in paragraph 9 of his statement of facts to the terms of his contract with the defendant.

 

13. The defendant then asked what constitutes the claimant’s contract of employment. That the law is settled that in determining disputes arising from the determination of contract of employment, the Court must confine itself to the plain words and meaning of the terms of contract of service between the parties, which provides for their rights, referring toJoseph v. Kwara State Poly [2013] 52 WRN 106 at 123, Longe v. FBN[2006] 3 NWLR (Pt.967) 22, CBN v. Igwillo [2007] LPELR-835(SC) andAlhaji Mohammed Bala Audu v. Petroleum Equalization Fund (Management) Board & anor [2010] LPELR-3824(CA). That in the instant case, it is to Exhibit C1 (the claimant’s offer of employment letter) and Exhibit D1, Nigerian Aviation Handling Company Plc (NAHCO) Staff Conditions of Service Manual January 2008, that recourse is to be had and construed. Exhibit D1 and C1 constitute the contract of employment between the claimant and the defendant. Confirming this position, the claimant when asked under cross-examination stated: “Yes, my employment was regulated by the Conditions of Service”. That looking at page 2 of Exhibit C1, the 3rd paragraph expressly states as follows: “Other terms of your employment are as stated in NACHO Staff Conditions of Service Handbook. You would be required to read the content carefully and abide by the stipulated rules and regulations stated therein. A booklet is attached for your perusal”. Now, the said Staff Conditions of Service Manual in Exhibit D1, at section II of page 9 paragraph (a) provides:

The Company expects employees to

1. Serve the Company well in any part of Nigeria and in whatever capacity and shall obey all lawful instructions.

The defendant then submitted that by the acceptance and acknowledgment of Exhibit C1, the claimant is bound by the terms and conditions of employment in the defendant’s company, “acceptance” being a fundamental requisite of a valid contract including contract of employment, citingOrient Bank (Nig.) Plc v. Bilante Int’l Ltd [1997] 8 NWLR (Pt. 515) 37 at 77 and Ojo v. ABT Associates Incorp.[2017] 9 NWLR (Pt. 1570) 167.

 

14. Furthermore, that the terms of employment of Exhibit C1 provide for a probationary period of six (6) months within which the claimant’s performance would be assessed. That by Exhibit C2 the defendant was given the impression by the claimant that he possessed a sense of responsibility and ability to work in whichever unit or department as deemed by the defendant and as provided in Exhibit D1. That within the probationary period, the claimant never registered his protest or opposition to the express terms of his employment thereby causing the defendant to confirm his appointment vide by Exhibit C2, citingIhezuwu v. University of Jos[1990] 4 NWLR (Pt. 146) 598 SC at 615 and Oyetayo v. Zenith Bank Plc[2012] 29 NLLR (Pt. 84) 370 as to the meaning of a probationary appointment.

 

15. With all of this in mind, the defendant proceeded to examine the grounds of constructive dismissal of employment put forward by the claimant vis a vis the elements that must be shown to exist in order to be successful as enunciated in Western Excavationsand whether those elements have been made out in this case by evidence.

 

16. The first ground is breach of job description and deliberate retardation of the claimant’s professional growth. To the defendant, at paragraph 9(A) of the statement of facts and same paragraph in the witness statement on oath of CW, the claimant provided particulars of an alleged breach of his job description and deliberate retardation of his professional growth. That he justified this by citing his transfer from the Legal Services Department to head the Passenger Services Department, the Facility Department and the Customer Support/Service Assurance/Marketing Department. That an interrogation of this issue turns on the terms of employment of the claimant. That Exhibit C1 tendered by the claimant himself is the letter of appointment of the claimant which implicates an important clause to the effect that other terms guiding the appointment of the claimant in the services of the defendant were as provided in the defendant’s Staff Conditions of Service Manual (Exhibit D1). That it goes further to direct the claimant to read the content carefully and abide by the stipulated rules and regulations stated therein. Indeed, that during cross-examination of CW on 6thJune 2017, he confirmed that Exhibit D15 is his extant conditions of service. That Exhibit D1, Rule 5 at page 20-21 thereof expressly provides that there shall be two career paths in the defendant: Specialist (Technical) and Generalist (Management). The said Rule 5 provides thus:
17. CAREER PATH

There shall be two career paths for any staff being employed in NAHCo PIc.These shall be as follows:

(a)Specialist (Technical)

(b)Generalist (Management)

 

The specialists are required to fit the requirements of any Department and job function.A specialist will work in the Department until he/she gets to the managerial level and can then become a generalist.

 

However, this will be on condition that he/she meets the requirements and also have competencies of the generalists.

 

The generalist will be those with altitude to fit in all departments. Recruitment here will beat the senior officer’s level while training will be on all operational areas.

 

17. To the defendant, it is manifestly clear from the above that the claimant was a generalist staff in the defendant as testified by DW and pleaded by the defendant. That this is more evident by the fact that the claimant was employed as a SENIOR LEGAL OFFICER and did not have to work to a managerial position as would a Specialist. That the claimant is by his training as a lawyer expected to know a bit of everything and versatile in learning and, therefore, possessed of the aptitude to fit in all (non-technical) departments as a manager.In any case, that by section II 8(a) of Exhibit D1, the claimant agreed to serve the defendant well in any part of Nigeria and in whatever capacity. That the claimant has not alleged that this provision is punitive or represents an unfair labour practice. He did not protest this provision or decline to sign on to the terms of service. He has not pleaded non est factum for accepting the terms and appending his signature thereon. That it is too late in the day for the claimant to turn around to attack legitimate transfers within the Lagos office of the defendant when in fact it was justified and provided by his conditions of service. That during cross-examination, the claimant confirmed that the defendant operates and maintains offices in all airports throughout the Federation. He equally confirmed that he was never transferred out of Lagos. He was at all material times transferred to departments within the Lagos office and had in fact served creditably in all his postings as evidenced by Exhibits D2 and D3 where he scored high rates of A and B for 2013 and 2014 respectively. This was in keeping with the defendant’s elaborate provisions in Exhibit D1 on Staff Transfer at Rule 7(b) and (c)(ii) at page 22 thereof to afford the claimant an opportunity of rounded skill development as a generalist. The Rule states factors the defendant considers for transfer of staff thus:

STAFF TRANSFER

………….

(b) All employees are liable to be called upon to undertake periods of temporary duty in other stations away from that at which they were normally employed.Such periods of temporary duty will not normally exceed three months.

(c) Staff transfer shall in addition to the consideration of company policy earlier stated, be based on other factors such as:

i)To fill vacancy

1. ii) To provide opportunity for rounded skill development.

 

18. That in addition to the above, the claimant was not entirely left on his own.That the defendant approved and sent him on training programmes to sharpen his job and managerial skills thus equipping him with competence to effectively manage assignments given to him. That by the claimant’s own admission at paragraph 22 of the his reply to the defendant’s statement of defence and paragraph 22 of his further witness statement on oath, the claimant sponsored him to a training on Standard Ground Handling Agreement and Service Level Agreement in London, United Kingdom and subsequently on Station/Ground Handling Management Course in Lagos both organised by International Air Transport Association (IATA) - a worldwide apex training body for aviation staff, and to various management trainings to wit: Workshop on Performance Management Systems in March 2011, Team Bonding Workshop in June 2014 and accelerated membership of the Chartered Institute of Arbitrators (UK), Nigerian Branch in 2010, referring to Exhibits D5, D6, D7 and D8. That all these trainings prepared the claimant for all the positions he was assigned to where he performed very well. That the claimant did not need to attend separate and distinct training or workshop for every section or department he was transferred, given his career path as a generalist (who is expected by reason of training and competence to manage any aspect of the defendant’s operations) on the managerial team.Thus, that the claimant was in grave misconception when he asserted that he was not availed airside certificate to enable him work on the airside.As clarified by the DW during cross-examination, there is no certificate called airside certificate and that the job description of the claimant did not require airside training.

 

19. The defendant went on that it was also the claimant’s testimony during cross-examination that he was not found wanting throughout his service in the defendant. The defendant then asked how the claimant could speculate that the defendant, which found his services satisfactory and did not query him, frustrated him out of the defendant. That the claimant never complained to the defendant that he was uncomfortable with his legitimate transfer to head other departments. The defendant then submitted that the claimant, though was employed by the defendant as a Senior Legal Officer, works at the pleasure of the latter and to that extent the defendant cannot be precluded from revising his job description, citing Mbachu v. AIRBDA [2006] 14 NWLR (Pt. 1000) 691 SC at 716 where the Supreme Court in dismissing the appeal held an employer can revise the schedule of duties of an employee. In all, that the claimant bears the burden of proving that defendant breached its job description and retarded his professional growth by its actions, something the claimant has failed woefully to do; as such his claim should be dismissed, citingDensy Industries Nigeria Ltd v. Uzokwe [1998] LPELR-6402(CA) andUjoatuonu v. Anambra State Govt.[2010] 15 NWLR (Pt.1217) 421 at 439. The defendant continued that it is instructive to point out that there cannot be a breach of job description as stated by the claimant; rather,there can only be a breach of contract or terms of employment which when breached entitles the innocent party to repudiate the contract depending on the term breached or compensated in damages, citingNNPC v. Olagbaju [2006] All FWLR (Pt. 334) 1855 CAat 1881.

 

20. The defendant proceeded to apply the constructive dismissal formulation test asestablished inWestern Excavationsto the first complaint of the claimant.

• There must be a breach of contract by the employer. Was the defendant in breach of contract of service of the claimant? The obvious answer to this is NO as the claimant did not point to any clause of the conditions of service that was breached by the d
• The breach must be sufficiently serious conduct by the employer. Was there a sufficiently serious breach of the conditions of service by the defendant? The obvious answer to this again is in the NEGATIVE.Where there was no breach at all (as in the instant case) there could not be a serious breach.
• The employee must leave as a result of the breach. Did the claimant resign as a result of breach of his contract of service? As there was no breach, the claimant could not have left and did not resign as a result of breach of a term of his contract of service. On the contrary, the claimant even expressed conviviality and camaraderie with his employers and co-employees in his exit mail to them. Out of the abundance of the heart the mouth speaketh!
• There must be no waiver of the breach, for example through the, employee’s delay in leaving. Was there a waiver of any breach by the claimant? There was nothing to waive as there was no breach. In any case, the complaints of transfer to different departments (which was provided in the conditions of service) happened from 2009 through December 2014. The claimant resigned in December 2015 purportedly for events that happened between 2009 and 2014. By the authority ofWestern Excavations that would amount to a complete waiver and condonation by the claimant.

 

21. On denial of promotion and entitlement, the defendant submitted that he who asserts must prove, citing Chairman EFCC &anor v. Littlechild &anor[2015] LPELR-25199(CA). That where, as in this case, the employment terms were reduced into writing in Exhibit D1 all entitlements must be located and sought in the conditions of service. That the claimant and indeed the Court are not allowed to go outside the conditions of service to prove or grant a claim, citing Compt. Comm. & Imnd. Ltdv. OGSWC [2002] 9 NWLR (Pt. 773) 629 at 654-655 and Anaja v, UBA Plc[2011] 15 NWLR (Pt. 1270) 377 at 392 - 393.

 

22. On the specific issue of promotion, the defendant submitted that it is borne out of evidence particularly at paragraph 9(A)(i) of CW’s witness statement on oath and paragraph 19 of DW’s witness statement on oath that the Federal Government of Nigeria (FGN) divested from the defendant in 2005 and the defendant was subsequently listed on the Nigerian Stock Exchange (NSE). That the conditions of service including promotions in the defendant were, therefore, severed from the Public Service Rules. As testified by the DW, the defendant adopted measurable target-based incentives, regardless of promotion, including rewards and profit sharing which do not obtain under the public service rules. That section IV Rule 1 of Exhibit D1 makes elaborate provisions on promotion of staff of the defendant and does not accommodate/provide automatic promotion based on number of years of service. It entirely leaves promotion in the exclusive hands of management on set targets. That the evidence of DW particularly at paragraphs 19 and 20 of his witness statement on oath on the mode of promotion in the defendant was not controverted in anyway by the claimant with any superior evidence. Interestingly, that DW was not cross-examined on this crucial claim of the claimant; neither did the defendant tender nor disclose any document showing that other staff were promoted and he was left out. Indeed, that promotion of staff is never a secret affair; therefore, if some of the claimant’s peers were promoted above him, the exercise would have been pasted on the notice board (as provided in section XIII Rule 17 at page 86 of Exhibit D1)and internal memo raised for that purpose. In this case, however, that the claimant chose to make vice voce allegation without backing of credible evidence, submitting that the claimant’s claim smacks of speculation and this Court does not entertain speculations, citing First Bank v. Azifuaku [2016] LPELR-40173(CA). That cases are won on hard facts and evidence, which is totally absent in this case.

 

23. Furthermore, that it was borne out of evidence at paragraph 20 of the DW’s testimony that there had been only one-off special promotion in the defendant from which the claimant benefited, referring to Exhibit C5 advising the claimant of his special promotion. Again, that the claimant failed to prove that there had been other promotions of his peers in the defendant from which he did not benefit. That even if there was, which is not conceded, Exhibit D1 at section IV Rule 1 at page 27 provides that promotion to a higher grade is dependent on performance, vacancy, technical ability and conduct. The Rule further provides, instructively, that the determination of these criteria is the sole prerogative of management; meaning that promotion is not automatic and where a staff fails in any or all of the set criteria, he may not be promoted, citingBakare v. CGC Nigeria Ltd[2013] 30 NLLR (Pt. 87) 379 NIC at 425 andMariam v. University of Ilorin Teaching Hospital Management Board(supra) at 126. That what seems to be at play in this case is that the claimant considered himself too big for the position that the employer had to offer him. That his remedy then is not to invent a grievance which does not add up by alleging constructive dismissal;his remedy it to move on with his life to face or pursue bigger challenges and opportunities which did not exist for him in the defendant company, referring to Sule v. Nigerian Cotton Board [1985] 2 NWLR (Pt. 5) 17 at 38.

 

24. On the specific issue of entitlement, the defendant submitted that the claimant alleged that the delay in matching a new official vehicle to his new grade was deliberate and meant to humiliate him. As usual, that the claimant failed to support this argument with evidence. The defendant agreed that the claimant was promoted to grade level M501 in October 2009 and the grade came with a fringe benefit of provision of a car. Indeed, that it is asterisked in Exhibit C5 immediately under the table thus: “Please note that since official vehicle is allocated to this position, transport allowance would not be paid in line with company's policy on benefits”. That nowhere in the above excerpt is it stated that the claimant is entitled to a “brand new car”. That it is not also stated when the vehicle would be made available. That it is trite that a party cannot by oral evidence alter the content of a document nor can a party read into a document what is not expressed or contemplated in the document, citing International Messengers (Nigeria) Ltd v. Pegofor Industries Ltd [2005] LPELR-1525(SC).That DW testified at paragraphs 21 and 22 of the statement on oath that the claimant was not immediately provided vehicle due to internal processes and availability of vehicles. That from the handwritten portion of Exhibit C8, it could be seen clearly that the first allocation of vehicle after the October 2009 promotion was done on 22nd of March 2010 after the defendant took delivery of brand new vehicles on 18th March 2010. That allocations were done in batches; however, those officers that could not take delivery of their cars were paid transportation allowances to cushion the effect. The defendant then referred to Exhibit C9 where it is shown that the defendant continued to diligently pay transportation allowance to the claimant for the periods he had no official car and had in fact overpaid him. That the used vehicle offered the claimant which he rejected was only a stop-gap measure until a new vehicle was available. That the Court will see form Exhibit D11 that soon after a new vehicle was purchased on7th September 2010 it was promptly allocated to the claimant on 17thSeptember 2010, referring to Exhibit C9. That there was, therefore, no reason to suggest intent to humiliate the claimant as he falsely alleged. That the claimant did not suffer any injustice by the delay in providing him an official vehicle as he was paid transportation allowance and same was immediately provided upon availability.Applying the Contract Test as established inWestern Excavations, the defendant submitted that the second claimant’s complaint cannot ground a successful claim under constructive dismissal, urging the Court to find no merit on this ground.

 

25. On failure to address the claimant’s grievances, the defendant submitted that it is borne out of evidence that the claimant never complained whether in writing, officially or orally to the appropriate channel of any or all purported grievances against the defendant or its officials. That it is the duty of the claimant to prove that he complained to the appropriate channel of the defendant and his concerns were left unaddressed. He is to do so by credibleevidence particularly so as a senior manager who ordinarily ought to know that working in official environment such complaints ought to be in writing.That the case of the claimant was not entirely hopeless in the absence of a document to prove his complaint about conducts of the defendant. He could still have proved his case on this score by calling the persons he mentioned at paragraph 9(C) of the statement of facts as witnesses to confirm his claim. He did not do so.That the best evidence rule dictates that the claimant can call or proffer such alternative and equally credible evidence of those persons he pleaded, citingPurification Technique (Nig) Ltd v. Jubril [2012] 18 NWLR (Pt. 1331) 117. That the claimant in fact made a strategic decision and voluntarily abandoned that task of calling some listed witnesses on subpoena. That where a party employs a strategy in a case, he must swim or sink with the strategy he has chosen and not blame anybody, citing Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 427 at 620.That there is, therefore, no evidence before this Court that the claimant complained against acts of the defendant or its officials towards him. That the claim is without merit and ought to be refused. Once again, that application of constructive dismissal formulation test as established inWestern Excavationsto the third head of complaint by the claimant cannot ground that complaint. In the circumstance, that the third ground of alleged constructive dismissal of the claimant is unproven and ought to fail. In conclusion, the defendant submitted that this suit ought to be dismissed with substantial costs as being without merit and an after-thought.

 

THE SUBMISSIONS OF THE CLAIMANT

26. The claimant adopted the sole issue submitted by the defendant for determination i.e whether on a holistic evaluation of the evidence led, the claimant has proved his case of constructive unfair dismissal and damages against the defendant. To the claimant, contrary to the contention of the defendant, he has proved his case before this Court. That this is because he sufficiently demonstrated in his pleadings and during trial that he is entitled to damages against the defendant on ground of constructive dismissal. That it is trite that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, has the burden of proving that those facts exist, citingArchibong v. Ita [2004] 2 NWLR (Pt. 858)590 at 619. That it is not in dispute that the relationship between the claimant and the defendant is largely regulated by the claimant’s offer of employment letter admitted as Exhibit C1 and the defendant’s Staff Conditions of Service Manual of January 2008 admitted as Exhibit D1. The existence of an employer/employee relationship is thus settled.By Exhibit C1, the claimant was offered the position of a Senior Legal Officer. The “Duties and Responsibilities” assigned to the claimant in Exhibit C1 were as follows:
27. Prepares and processes legal documents and documents and papers such as summonses, subpoenas, complaints, appeals, motions and pretrial agreements.
28. Prepares various agreements (e.g. Tenancy, Maintenance, etc).
29. Mails, faxes or arranges for delivery of legal correspondence to clients, witnesses and court officials.
30. Organizes and maintains law libraries, documents, and case files.
31. Assists Company Secretary/General Counsel in collecting information such as employment, medical, and other records.
32. Attends legal meetings, such as clients interviews, hearings, depositions, and take notes.
33. Reviews legal publications and performs database searches to identify laws and courts decisions relevant to pending cases.

 

27. Admittedly, that the same Exhibit C1 states further that “other terms of your employment are as stated in NAHCO Staff Conditions of Service Handbook”. To the claimant, NAHCO Staff Conditions of Service Handbook is not meant to reverse the primary basis for the appointment of the claimant but to complement same. That the provisions of NAHCO Staff Conditions of Service Handbook are not blank cheques to derail the claimant’s professional career and indeed the career of any employee of the defendant. That the defendant argued albeit erroneously that section II of page 9 paragraph (a) of Exhibit D1 which provides that the company expects employees to serve the company well in any part of Nigeria and in whatever capacity and shall obey all lawful instructionsmeans that the claimant should be prepared to serve in any unit or department of the defendant. This, the claimant submitted, is not the purport of section II of page 9 paragraph (a) of Exhibit D1. That the expectation that an employee should be ready to serve in “any capacity” does not mean service in any unit or department without qualification; rather, it means service in a capacity that is incidental or connected to the office or position of the employee. To hold otherwise will defeat the import of the provision. For example, that a person employed into the Engineering Department of the defendant cannot be expected to have the capacity to run the Accounts Department in the guise of complying with section II of page 9 paragraph (a) of Exhibit D1. Indeed, Exhibit D1 in item 7 at page 22 (that is, Staff Transfers) provides that:“the company’s policy on transfer of staff shall be based on facilitating and ensuring the smooth running and efficiency of business. Transfer shall therefore not be indiscriminately carried out”. Anything to the contrary will ground the smooth running of the defendant’s business. The claimant, therefore, submitted that it is not the intendment of section II of page 9 paragraph (a) of Exhibit D1 that transfer or placing of staff within the defendant should be carried out indiscriminately; urging the Court to so hold.

 

28. The defendant had argued further that Exhibit C1 provides for a probationary period of six (6) months. That the defendant rightly stated that the probation period is a period “within which the Claimant’s performance would be assessed” by the defendant. That this is because the provision is for the benefit of the defendant to decide whether or not to retain and confirm the employment of the claimant. That the defendant’s counsel, however, got it wrong when he submitted further that “the Defendant was given the impression by the Claimant that he possessed a sense of responsibility and ability to work in whichever unit or department as deemed by the Defendant and as provided in Exhibit D1”.That the defendant’s counsel failed to show to this Court that during the probationary period leading to the claimant’s confirmation, the claimant was moved from the Legal Department to other unrelated departments within the defendant and whilst there, he gave the impression that he could function in such Unit or Department outside the Legal Department. He who asserts must prove, citingNewbreed Organisation Limited v. Erhomosele [2006] 5 NWLR (Pt. 974) 499. To the claimant, the simple case put forward by him is that the defendant’s actions clearly led to his constructive dismissal from the employment of the defendant. The claimant agreed with the defendant’s counsel that for the claimant’s case to succeed, he must prove as enumerated by Lord Denning in Western Excavations v. Sharp[1978] 1 All ER 713 that there is a repudiatory breach (actual or anticipatory) on the part of the employer, which must be sufficiently serious to justify the employee resigning; the employee must resign in response to the breach; and the employee must not delay too long in acting on the breach.

 

29. On the requirement of the existence of a breach on the part of the employer, the claimant submitted that his job specification was unequivocally spelt out.Whilst he acknowledged the power of the defendant to post or transfer its employees around various Departments or cities, the claimant submitted that same must be within the provisions and intendment of Exhibit D1. That the overriding consideration in the transfer of an employee by the defendant is to facilitate and ensure the smooth running and efficiency of the defendant’s business, referring to section III (under General Conditions of Employment) in item 7 page 22 of Exhibit D1. And that this objective cannot be achieved where the defendant fails to place persons with required skills and training in the right Department.That the objective of the claimant’s job as per Exhibit C1 is “to provide administrative support to the Company Secretary/General Counsel by preparing necessary documentation and offering opinions”. To the claimant, any transfer of duty not in consonance or near consonance with the objective of the claimant’s employment and without the necessary/required training will amount to a breach on the part of the employer, citing Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (Pt. 154) 531, where this Court held thus:

Globally, and in labour/employment law, constructive dismissal, also referred to as constructive discharge, occurs when an employee resigns because his/her employer's behavior 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.

 

30. That in the instant case, there is no dispute as to the serial changes in the claimant’s job description and by implication his term of employment. That the point of disagreement between the claimant and the defendant is that whilst the claimant contends that the serial transfers and/or changes in his job description breached his terms of employment and derailed his career development because of the working environment, the defendant argues that the changes did not breach the terms of employment of the claimant. To the claimant, the defendant’s contention is baseless and ought to be discountenanced by the Court. That the claimant’s testimony in paragraph 21 of his further affidavit is to the effect that he was not in any way equipped with the requisite trainings to monitor technical operations of the defendant as shown in the various functions under the new Ground Handling Directorate announced on 18/12/14. That the defendant, however, pleaded Exhibit D5 to argue that the claimant was duly trained for the position. That the implication of the defendant’s position is an admission on the part of the defendant that the said position requires specific training. That the unshaken testimony of the claimant at paragraph 22 of his further statement on oath is instructive in this regard in that the claimant stated thus that contrary to paragraph 16 of the statement of defence, the Standard Ground Handling Agreement and Service Level Agreement training was not designed to enable him discharge my obligations in any designated department of the defendant.

 

31. The claimant went on that the defendant made the point that the various transfers of the claimant was to afford the claimant an opportunity of rounded skill development as a generalist, relying on Rule 7(b) and (c)(ii) of Exhibit D1. That a cursory look at Rule 7(b) of the said exhibit not only supports the case of the claimant but reveals the fundamental breach committed by the defendant. That a look at Exhibit C11 shows that the claimant was transferred in December 2014 to the Customer Support/Service Assurance/Marketing Department and as at June 2015 (five months thereafter), as revealed in paragraph 9(c)(xi) of the claimant’s statement on oath, he was still in the same Department contrary to the three months stipulated in Rule 7(b) (assuming the transfer was even justifiable in the first place).

 

32. The defendant’s counsel had arguedthat the claimant is a generalist who is expected to fit in all Departments, relying on Rule 5 at pages 20 - 21 of Exhibit D1. To the claimant, the defendant glossed over the relevant provision, which states clearly that “…training will be on all operational areas” for a generalist. Firstly, that this would seem to contradict the argument of the defendant and the testimony of DW under cross-examination that the claimant did not require training to work at the Airside, whereas it is mandatory that training must be on all operational areas. Furthermore, that DW’s testimony that the job description of the claimant did not require airside training is simply an afterthought to mitigate the damage his evidence had caused the defendant. That the claimant had clearly testified in paragraphs 19 and 20 of his further statement on oath that he was not issued any Job Description upon his transfers to Facility Department, and later to Customer Support/Service Assurance/Marketing Department; despite his request for same. Additionally, that Exhibit C14 in its 3rd paragraph refers to these postings as “undefined job roles and functions”. That the defendant did not lead any evidence to debunk these clear assertions, and the claimant is not obligated to prove a negative fact, citing Umeojiako v. Ezenamito [1990] 1 NWLR (Pt. 126) 253. Secondly, that the claimant consistently maintained the absence of requisite training for him which is an integral part of being a generalist. The claimant accordingly urged the Court to find as a fact that the defendant breached the terms of his employment by violently changing his terms of employment and also failing to give him the required training to make him fit into other Departments which were not related to his office and area of competence: legal.

 

33. The claimant continued that he succinctly traced the origin of the hostile treatments he received from the Management of the defendant to an assignment he carried out shortly after his employment. That the outcome of the assignment laid the foundation for the serial breaches of the terms of employment of the claimant, referring to paragraph 9 (iv) of the claimant’s statement on oath, where he stated as follows:
34. About three (3) weeks into my employment with the Defendant, I was appointed to head the Task Force set up to review, strengthen, and improve cargo processes, procedure, revenue, and plug identified revenue leakages in the activities of the cargo section of the defendant. Unfortunately, the unbiased but indicting report of the Task Force I headed pitched me against many forces within the Defendant. The report of the Task Force dated 4th April, 2008 shall be relied upon at the trial of this suit.

That the defendant attempted unsuccessfully to create an impression that the claimant enjoyed the best of treatments, ranging from commendations to adequate training for specific tasks; and in some instances, the defendant claimed that training was not required to perform where the claimant was posted to work. That the claimant, however, demonstrated during trial that he fought his way through to get the few entitlements associated with the various offices he occupied. That even at the point of his exit from the service of the defendant, the breach of his terms of employment continued when attempt was made to shortchange him in the ex gratis payment, referring to his testimony in paragraph 28 of his further statement on oath. The claimant ended by submitting that in effect, he would have been victimized and short-changed by the defendant to the tune of N1,057,060.30 (that is, 2 months gross pay) if h had not protested vehemently this time. On the point regarding the existence of a breach of contract, the claimant urged the Court to hold that the defendant breached the terms of employment of the claimant.

 

34. Regarding the requirements that the employee must resign in response to the breach and he did not delay too long in acting on such breach, the claimant submitted that arising from the serial breaches of his terms of employment by the defendant, he resigned from the employment of the defendant via Exhibit C14. That the fact that the defendant is in receipt of the resignation letter of the claimant is not in controversy. That the reasons adduced therein for the resignation were equally not disputed until the claimant filed the instant action. That the defendant did not lead any evidence to show that it had any exit interview to at least show that it cared about the claimant’s reason for leaving the company. The claimant then asked why the defendant did not immediately rebut the detailed and indicting points highlighted in Exhibit C14; and submitted that the defendant did not bother with a rebuttal simply because its intended objective had been achieved, the exit of the claimant. That in paragraph 28 of the claimant’s further statement on oath, the claimant confirmed that his resignation letter and the reasons contained therein for his exit were accepted unconditionally. That the gamut of the defendant’s statement of defence smacks of afterthoughts, urging the Court to so hold.

 

35. The claimant further submitted that given the reasons he indicated in his resignation letter for his abrupt exit,his resignation is not voluntary as the defendant would want this Court to believe; rather, it is a clear case of constructive dismissal which ought to be remedied, citing Western Excavations. That no doubt, he successfully established a clear-cut case of constructive dismissal. That the defendant, however, failed to prove otherwise. That the defendant could not prove the assertion that the claimant’s exit was voluntary, submitting that the consistent position of our Courts has been that where a party fails to prove its assertion on a particular fact the opponent’s version is reinforced, referring to Metibaiye v. Narelli Int’l Ltd[2009] 16 NWLR (Pt. 1167) 352.

 

36. The defendant has repeatedly argued that the claimant did not leave the defendant as a result of the breach of the terms of his employment; hence the claimant’s case of constructive dismissal must fail. To the claimant, it is either the defendant does not understand the claimant’s case or the defendant is deliberately feigning ignorance of the case being advanced by the claimant. That the claimant demonstrated through his testimony that from the date he produced Exhibit C3, the report of the Task Force he headed, till after he tendered his resignation letter, he suffered serial breaches of the terms of his employment and unfair treatments. Instructively, that all these happened under successive Managements.

 

37. Continuing, the claimant asked if there was any delay on his part in exiting the defendant; and answered in the negative.That whereas Exhibit C14(Letter of resignation) was made in November 2015, the testimony of the claimant before Court shows that as at June 2015, the breach of the terms of employment of the claimant was still continuing. That the claimant testified as follows in paragraph 9(c)(xi) of his statement on oath:“My request for training for staff in my Department was belatedly approved while my own training (as Head of the Department) and my deputy were denied…” That this was in June 2015. That this fact was not denied by the defendant; rather, DW only tried to justify under cross-examination the reason for denying the claimant the requisite training for the job as at June 2015. That it is quite preposterous for DW to claim that the Head of a Department (the claimant) does not require training in respect of the assignment he will supervise but only the staff of the Department deserved such training, referring also to paragraph 9(a)(xvii) of the claimant’s statement where he restated that he was not given the requisite training. Moreover, that the defendant’s maltreatment of the claimant continued with depletion of the workforce of his Department and the abrupt transfers out in September 2015 of his hardwon replacement staff (who he was alreadygrooming and tooling for the job) without notice, consultation or even other replacements by the defendant. Indeed, that this latter action of the defendant was the last straw that effectively emasculated the claimant and led to his tendering his letter of resignation by 2nd November 2015; barely within 2 months. The claimant then submitted that the author of the book, Corporate Administration 6th Edition (2009) ICSA Publishing, gave a succinct example of the ‘last straw’ concept which effectively deflates the defendant’s claim that the claimant delayed in reacting to his perceived breach of the terms of his employment since 2009. According to the learned author at page 159 of the book:

However, a relatively minor act may be sufficient to enable the employee to resign and claim ‘constructive dismissal’ if (for example) it is the last in a series of incidents which cumulatively amount to a repudiatory breach (the ‘last straw’ situation).

 

For example, if an employee were to be asked to carry out a specific task in addition to or as part of his duties and the employer stated that providing everything was done satisfactorily to employee would be given a substantial pay rise on completion, and the employer then reneged on paying the increase despite the project being completed entirely satisfactorily, the employee would probably be entitled to resign and claim constructive dismissal. If however, he did not resign for (say) three months, that would probably be too long an ‘acceptance of the status quo’ for any successful constructive dismissal claim. Conversely, if after those three month (during which time he took no action other than complaining that he had not received the promised rise), the employer carried out another adverse act, e.g. took away his right to eat in the management restaurant without good cause, then that might still be constructive dismissal under the ‘last straw’ concept- in which case the former injury (the non-payment of the promisedpay rise) could form part of his complaint of constructive dismissal.

 

38. The claimant maintained that the defendant totally misconceived the claimant’s action hence the misguided arguments. For instance, that the defence counsel attempted to justify the humiliation suffered by the claimant before he got an official vehicle when he relied on DW’s testimony that allocation of vehicles were done in batches. That this submission overlooked the fact before the Court that even juniors of the claimant were given brand new cars, and after protests from the claimant, he was given a used car, referring to paragraph 9(b)(v) of his statement on oath. That the question could be posed as to why negative ‘novelties’ were meted out by the defendant only to the claimant in the matter of official car allocation. The claimant then urged the Court to find merit in his case and to discountenance the defence put forward by the defendant as same is baseless and an afterthought, for the following reasons:
39. a deliberate effort to twist the evidence and rely on ‘technicalities’;
40. a deliberate attempt to invent a procedure (of complaints) not created by the sameExhibit D1 recognized as ‘Contract of Employment’ and relying on same to argue/justify the defendant’s refusals to act on the claimant’s verbal complaints against his incessant transfers;

• deliberate efforts at obfuscating the provisions of Exhibit D1 by not referring to its ‘contextual’ provisions but instead trying to stretch its provisions to suit the arguments of the defendant; and

1. trying to mislead the Court by misrepresenting the exact times, and sequence of events (per trainings, and other actions of the defendant).

 

39. The claimant went on that the defendant’s counsel had tried to disparage the claimant forbringing this suit to Court. That this is most uncharitable. That the defendant conveniently ignores that:
40. it put the claimant in positions where he had no competence or trainings for good performance;
41. despite the obvious bad faith of his transfers by the defendant, the claimant did not exhibit any disobedience nor refuse any of his strange postings but rather resumed duties, albeit under protest after his protests were discountenanced by the Managements;
42. the claimant was ostracized and stigmatized inexplicably by successive Managements in a company where he had shown so much competence and good performance;
43. the claimant’s good performance was grudgingly admitted by the various Managements (in the Performance Appraisals of the claimant) but the Managements lacked the grace to reward the claimant appropriately;
44. the punitive transfers of the claimant to technical functions of the defendant made the claimant to be like fish out of water’ largely due to the fact that he had no role-specific trainings for those deployments;
45. the net effect of all these adverse treatment of the claimant by various, successive Managements of the defendant intermittently was that the claimant became so frustrated in his work that the last straw for him was the sudden transfer out of his hard-won staff in his last deployment without due replacements; and
46. the claimant testified during trial that the defendant took active steps, during the pendency of this suit, to frustrate and defeat the claimant’s case by instigating the Nigeria Police Force (through Beesam Police Station, Airport Command) to spuriously search the claimant’s residence on 31st August 2016, confiscate his file of documents marked ‘Personal: NAHCO Matters’ and numbered 1-118 pages, and arrested him thereafter.All these disconcerting events happening barely 5 days to the start of the claimant’s final examinations in his LL.M Programme in Legislative Drafting at NIALS, Unilag, Lagos, referring to paragraphs 8 and 9 of the affidavit in support of the claimant’s Motion on Notice dated 23rd November 2016 for extension of time. That the said affidavit forms part of the record of this Court; and the Court has the power to refer to the Court’s records in the determination of any issue before the Court, citing Agbareh v. Mimra [2008] 2 NWLR (P 1071) 378 andNigergate Ltd v. Niger State Government [2008] 13 NWLR (Pt. 1103)111 at 145.

 

40. To the claimant, having been confronted with this well-articulated lawsuit, the defendant is caught in its serial infractions and ill-treatment of the claimant and is now running the gauntlet of trying to navigate itself out of its misdeeds by casting aspersions on the claimant. That the defendant is so obviously struggling to justify its deliberate truncations, and eventual derailment of the claimant’s career without valid excuses. That the defendant has not shown how its maltreatment of the claimant was the norm in the company nor has it adduced any evidence to show how other lawyers (and colleagues of the claimant) in the company were treated just like it did the claimant. The claimant then submitted that the conduct of the defendant as shown in this case entitles the claimant to damages against the defendant. In urging this Court to grant the claim of the claimant, the claimant commended the decision of this Court in Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd(supra) to the Court, where this Court stated as follows:

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.

 

THE REPLY ON POINTS OF LAW OF THE DEFENDANT

41. In its reply on points of law, the defendant first indicated that the claimant had claimed his evidence at the trial was that he had a “thriving corporate legal practice” before employment with the defendant. To the defendant, the facts and evidence do not support this claim. That the claimant did not go beyond ipsa dixit to prove he had a thriving corporate legal practice prior to his engagement;no such evidence was led at trial. Additionally, that the claimant’s argument that the defendant instigated the Nigeria Police Force to search his residence, confiscate his documents and arrest him does not form part of the claimant’s pleadings. That the it is a settled principle of law that parties are bound by their respective pleadings and cannot rely on facts which are extraneous to those pleaded, citingKyari v. Alkali[2001] 11 NWLR (Pt. 724) at433-434.

 

42. The defendant went on that the claimant referred to the affidavit in support of the Motion on Notice dated 23rd November 2016 for extension of time in order that this Court draws its inference from the depositions of the said affidavit. To the defendant, this is a practice and procedure not known to law. That since the facts therein are not pleaded, they have to foundation to stand in the judgment of this Court. That it is trite that the Court must confine itself to facts expressed in the parties pleadings. That where evidence is led on facts not pleaded, its goes to no issue and must be expunged or discountenanced, citingOkoko v. Dakolo[2006] 14 NWLR (Pt. 1000) 401 at 422 andOgu v. Manid Technology & Multipurpose Co-operative Society Ltd[2011] 8 NWLR (Pt. 1249) 345 at 375-376. Also, that Order 45 Rules (2) sub (2) of the Industrial Court Civil Procedure Rules 2017, which stipulates the content and format of parties’ written addresses, states in paragraphs (g) as follows:

A Written Address shall not be more than thirty-five (35) pages, set out in paragraphs and numbered serially. It shall contain:…

(g) not contain extraneous matters.

Provided that where a written address contains extraneous matters, the court may discountenance the portion of the final address containing the extraneous matters.

 

43. On the claimant’s argument that the provision to serve the company in “whatever capacity” as stipulated in section II of page 9 paragraph (a) of Exhibit D1 does not connote the claimant’s service in any unit or department of the defendant without training or qualification and that the defendant was guilty of indiscriminately transferring the claimant in a manner that would affect the smooth running of the business of the defendant, and that he gave no impression that he could work in any unit during probation as he was not transferred within the period, the defendant submitted that much as it appreciates the concern and interest of the claimant towards the smooth running of the defendant’s operations, evidence on record bear well on the claimant that he actually excelled in the Units he was transferred to head. That this explains why he was never queried or complained about the transfer to the appropriate authority or any authority at all. That it is not open to the defendant to force an interpretation of any of provisions of the Handbook willy nilly to his grouse and allegations of being constructively dismissed. That in “whatever capacity” used at section II Rule 8 (a) page 9 is self-explanatory and unambiguous; and the Courts are enjoined in a situation such as this to give the provision its ordinary and literal meaning, citingKhamofu v. Standard Chartered Bank (Nig) Ltd[2016] LPELR-41497(CA). In any case, that where a party desires the Court to enquire into the reasonableness of any provision, it has a duty to expressly so invite the Court to undertake such exercise.

 

44. The defendant continued that it is reasonably incidental and connected to employment that an employee must be transferred from department to department and from job roles to other job roles hence an expectation from the defendant at same Rule 8 (a) page 9 to the effect that the employee “…shall obey all lawful instructions given to them in the discharge of their duties”. That documentary evidence which provisions invariably binds the parties to same is regarded as the best evidence in law and should be construed within its ordinary and literal meaning with no extraneous stipulations unless otherwise stated in such document, citingDalek Nigerian Ltd v. Oil Mineral Producing Area Development Commission (OMPADEC)[2007] 7 NWLR (Pt. 1033) 441.

 

45. On the issue of probation, that the claimant took the defendant’s submission out of context. Indeed, a copy of Exhibit D1 was at all times material in this suit including the period of probation in custody of the claimant. That he had the opportunity to go through the contents of the exhibit and either resign or apply for amendment of any clause he felt offensive or he was uncomfortable with. Rather, the clamant accepted the terms and his appointment was confirmed. That the claimant cannot now resist an honest and reasonable application of the binding terms in the contract of employment, citingUnited Investments Ltd v. Registrar of Titles, Lagos State &ors[2016] LPELR-41406(CA). That so long as such terms and conditions are embedded in the contract of employment, it behoved on the claimant to immediately at the earliest opportunity disclose his reservations and displeasure pertaining any such terms and conditions stipulated in his contract of employment or infact reject totally the employment offer, otherwise his silence would be deemed as acceptance by conduct, referring toBest (Nig) Ltd v. Blackwood Hodge (Nig) Ltd[2011] 5 NWLR (Pt.1239) 95 and Unitab Nig. Ltd v. Oyelola[2005] AFWLR (Pt. 286) 824. Furthermore, that the claimant by his conduct during the probationary period and even after not only amounted to an implied acceptance of his conditions of service but also an acquiescence; that is, in the event that the defendant is actually in the wrong. That a personis said to have acquiesced where he fails to take steps when his legal right is being violated. He will in the instance be disallowed from asserting that legal right, citing Olaleye v. Trustees of ECWA[2011] 2 NWLR (Pt. 1230) 1 at 30.

 

46. The claimant had asserted that evidence of his maltreatment included the fact that there was “depletion of workforce of his Department and the abrupt transfers out in September 2015 of his hard worn replacement staff (who he was already grooming and tolling for the job) without notice…”To the defendant, this submission defeats the allegation that the claimant was assigned to a position that he was not suited or skilled to manage. that he could not be grooming and tooling subordinate staff to replace him on a job schedule that he was not trained or competent to handle as contended. Nemo dat non quod habet!You cannot give what you do not have, citingKari v. Ganaram [1997] 2 NWLR (Pt. 488) 380 SC. The defendant then urged the Court to find in its favour and hold that the defendant was led by the actions of claimant to believe that the Conditions of Service of employment were acceptable by the latter.

 

47. The claimant had submitted that even if his transfers were to be regular, it exceeded the period of three months prescribed in Rule 7(b) of Exhibit D1 and that the defendant did not offer airside training to him as it ought to be on all operational areas. To the defendant, the Rule referred to by the claimant is specifically for “temporary duty”.That the defence of the defendant was not that the claimant was placed on temporary duty to the units he was transferred to. It does not lie in the powers of the claimant to change the facts upon which the defendant built its defence. That the Court would see that the defendant addressed the defence of “rounded skill development” and not temporary duty. That the little emphasis by underlining of Rule 7(b) was to also draw the Court’s attention to additional provisions in Exhibit D1 permitting transfer of staff from the staff primary unit. Indeed, that prime emphasis was on Rule 7(c)(ii) which was in bold, italicized and underlined.

 

48. The defendant proceeded that there is no contradiction as alleged by the claimant on the provision of Rule 5 at page 21 of Exhibit D1 and DW’s testimony during cross-examination that the claimant did not require training to work at airside. That DW explained that there was nothing like airsidecertificate but Airside Permit which requires training. He explained that the nature of the job of the claimant did not require airside training and permit, which is internationally regulated. That by the claimant’s admission at paragraph 9(C)(xi) of the statement of claim and witness statement on oath, he was not the only one affected. That his deputy was also not entitled to airside training and so was not sent. That there is no contrary evidence presented by the claimant to support his claim that he was so entitled to airside training as it was not meant for everyone who worked at the airside.

 

49. The defendant went on that theclaimant’s reference to paragraphs 19 and 20 of his further statement on oath that he was not issued with any job description upon his transfer to Facility Department and Customer. Support/Service Assurance/Marketing department flies in the face of the clear contents of Exhibits C6, C7, C10 and C11. Exhibits C10 and C11, which notified the claimant of his transfers to the Facility Department and the Customer Support Department, have as their third paragraphs respectively: “The GM HR & OD will advise you of your responsibilities and job description” and “You are to report to the COMMERCIAL MANAGER who will brief you of your new/revised schedule of duties and also hand to you your JD and set of KPIs”.That the claimant could not have assumed duty in a new department without a job description or schedule of duties. It is trite that however so convincing, oral testimony is incapable of successfully contradicting documentary evidence, citingOgundele &anor v. Agiri &anor[2009] LPELR-2328(SC).

 

50. On the alleged circumstances leading to the calculation of the claimant’s terminal benefits, the defendant submitted that thisserves no purpose but an appeal to sympathy, and it was unnecessary as at that point the claimant had submitted his resignation letter and had itemized his reasons for resignation. That in so far as his appropriate terminal benefit was paid, the alleged circumstances do not constituted a breach of his terms of employment as erroneously and ingeniously argued. Curiously, that the letters allegedly exchanged between the claimant and Mr. Wole Eniafe were not frontloaded nor tendered in evidence.That those allegations ought to fall flat on their face, urging the Court to so hold more so as the alleged circumstances were introduced in the claimant’s reply to defendant’s statement of defence thereby denying the defendant an opportunity to answer to it. That it is trite that a reply is not a carte blanche to introduce new facts in the pleadings which is what the claimant did with paragraph 30(i) - (viii) of his reply to the statement of defence in clear violation of the time honoured rule of pleadings. The defendant then invited the Court to strike out the offending sub-paragraphs.

 

51. To the defendant, the right of an employee to resign from his appointment at will and the employer’s obligation to accept such resignation is an established principle of law, citingAprofim Engineering Construction Nig. Ltd v. Jacques Bigouret &anor[2012] FWLR (Pt. 622) 170 at 1764. that it is also trite that an employer cannot prevent an employee from resigning his employment for whatever reason just as an employee cannot be imposed on an unwilling employer, citingUBN Plc v. Soares[2012] 11 NWLR (Pt. 1312) 550 at 578. That it is the claimant’s prerogative or choice to resign from the defendant at any time and such a step cannot be questioned by the defendant more so as Exhibits C1 and D1 make no provision for dialogue as inferred by the claimant. That it is the cardinal principle of the defendant that no staff including the claimant is indispensable or too important in the operations of the organization.Thus the defendant was not under any obligation to respond to the reasons contained in Exhibit C14. Perhaps, that explains the absence of a judicial authority to support the claimant’s contention. That the claimant must have confused its letter as a business letter which by law raises a rebuttable presumption of admission if not replied to, citingCAP Plc v. Vital Inv. Ltd[2006] 6 NWLR (Pt. 976) 220 at 267. Disingenuously, that the claimant now seeks to rely on Exhibit C14 as a formal letter of complaint which he failed to write to the defendant’s Management about the alleged infractions of his terms of employment by the alleged frequent transfer. That the exhibit is what it is, a resignation letter which only has the effect of bringing the employment relation to a close, referring to the Black’s Law Dictionary, 7th Edition where Bryan A. Garner at page 1311 defines the term “Resignation” as: “1. The act or instance of surrendering or relinquishing an office, right, or claim.2. A formal notification of relinquishing an office or position”. That a formal complaint on the other hand has been explained inter alia in the Webster New Encyclopedia Dictionary as “formal accusation or charge”. Apparently, that the letter of resignation merely stated the claimant’s reasons for resigning which does not by any stretch of imagination amount to a formal written complaint in the course of the defendant’s employment.

 

52. The claimant had contended that the burden is on the defendant to prove that the claimant’s resignation was voluntary. To the defendant, this is strange and unsupported by the rule of evidence. That in civil cases the primary duty of proof is on the party who will lose if no evidence was led or the party that asserts. That the adverse party is not expected to do anything until that initial burden is successfully discharged, citingVisitor, IMSU &ors v. Okonkwo &ors[2014] LPELR-22458(CA). That in the instant case, the claimant alleges constructive dismissal or forced discharge. He has the primary duty to lead credible evidence (not speculative as largely done in this case) in proof upon which the burden shifts on the defendant to assert the contrary. That even though the claimant has failed to so prove, the defendant ex abundante cutela furnished credible evidence that all its actions were in compliance with the terms of employment and the resignation was indeed voluntary. That it is, therefore, quite absurd for the claimant to contend as he did. That references to his alleged ordeal as an off-shoot of heading a Task Force, transfer of personnel from his department, non-recommendation for training for him and his deputy and purchase of official vehicle portrays an ex staff who viewed normal corporate experiences with suspicion and who feeds into speculation, rumours and somewhat of a bloated sense of self importance. Pray! That the claimant naively expected that all his requests and obligations of the defendant must immediately be complied with without delay. He saw and assumed that certain people wanted him to fail when what was expected of him as a Manager (like other managers) was to appropriately apply scarce resources and personnel for optimum and effective result. That is what Managers do! Furthermore, that even though the claimant’s claim that some staff under him was transferred to needy departments is not proved, it is absurd to assume that the defendant transferred the staff to punish him or frustrate him out of the company. That will be playing the victim’s card to an unreasonable level.

 

53. Again, the claimant referred to the views of learned authors of Corporate Administration, 6th Edition (2009) ICSA Publishing. To the defendant, the passage quoted was to buttress the claimant’s argument of a single specific “last straw” event being enough to establish constructive dismissal. That the question is what was the last straw in the instant case to trigger the claimant’s resignation. That he has laboured endlessly to identify one;he even cited issues regarding computation of this terminal benefits that arose after he had resigned.That nothing can be more preposterous. The defendant then submitted that the scenario envisaged by that opinion is not present on the facts of this case; where no specific incident was relied upon by claimant. Rather, his claim is based on alleged “verbal complaints against transfers” running from his period of probationary employment in January 2008 until his voluntary resignation in December 2015 after giving requisite notice and staying till expiry of his disengagement notice. Hence the authors noted very illuminatingly: “If however, he did not resign for (say) three months, that would probably be too long an acceptance of the status quo for any a successful constructive dismissal claim”. In other words, that the claimant was only making verbal complaints for eight (8) years (and accepting the status quo) against different managements of the defendant company. And curiously, that he never thought it fit to put the complaint in writing to document and formally press for a redress;that is certainly not evidence of someone forced to leave his employment. What a cock and bull story! In addition to the issue of alleged verbal or formal complaints to the Management of the defendant, the defendant submitted that the evidence on record is settled that no such complaint exists. That in fact, the handwritten document dated 16/11/09 frontloaded by the claimant purporting to be a formal complaint was voluntarily withdrawn. In conclusion, the defendant urged the Court to discountenance this portion of the claimant’s final address with extraneous facts and dismiss the claimant’s case in its entirety.

 

COURT’S DECISION

54. After due consideration of the processes filed and submissions made in this suit, I need to first resolve the issue of the admissibility of some of the documents tendered. Exhibits C13, C19 and C21 are all internal memos and are not signed. Exhibit C13 dated 29th June 2016 and has as subject “Request for Airside Drivers Training”. Exhibit C19 dated 10th September 2014 has as subject “Issues in NAHCO FTZ’s Relocation to MMIA Airside”. And Exhibit C21 dated 17th April 2015 has as subject “ODC Changes Requested in Lagos Station”. They are all documents which ought to be signed but are no so signed. The law is that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful. See Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47 andSarai v. Haruna [2008] 23 WRN 130. Andby Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA), an unsigned and undated document has no evidential value. Accordingly, since Exhibits C13, C19 and C21 ought to be signed but are not signed, they have no evidential value and so are discountenanced for purposes of this judgment. I so find and hold.

 

55. The defendant had argued that the claimant’s claim that he had a “thriving corporate legal practice” before employment with the defendant does not form part of the claimant’s pleadings. This is not true. Paragraph 6 of the claimant’s statement of facts states thus: “The Claimant avers that prior to his employment by the Defendant, the Claimant had a thriving corporate legal practice until he saw the opportunity to fulfill his desire of advancing his professional skills in Cooperate Law and Practice when the position of Senior Legal Officer for the Defendant was advertised”. Accordingly I find and hold that the claimant’s claim that he had a “thriving corporate legal practice” before employment with the defendant forms part of his pleadings.

 

56. The defendant had also submitted that the claimant’s claim that the defendant instigated the Nigeria Police Force to search his residence, confiscate his documents and arrest him does not form part of the claimant’s pleadings. I agree with this submission of the defendant. I searched through the claimant’s pleadings and found no averment supporting the claimant’s claim. The law is that evidence given which is not in line with the facts pleaded goes to no issue and so is of no help to the party that produces it. See The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129. And a counsel’s submission, no matter how brilliant, is certainly not a substitute for credible evidence. See Ajayi v. Total Nigeria Plc [2013] LPELR-20898(SC) and Adam v. Shaibu & ors [2016] LPELR-40179(CA). This means that the claim of the claimant as to the defendant instigating the Police to search his residence, confiscate his documents and arrest him, not forming part of the claimant’s pleadings, goes to no issue; and so is hereby discountenanced.

 

57. Additionally, the defendant submitted that the claimant’s reference to his affidavit in support of the Motion on Notice for extension of time dated 23rd November 2016 in order that this Court draws its inference from the depositions of the said affidavit, is a practice and procedure not known to law giventhat the facts therein are not pleaded and so have no foundation upon which to stand in the judgment of this Court. I agree with the defendant. Facts not pleaded go to no issue. See Obineche& ors v. Akusobi& ors[2010] LPELR-2178(SC); [2010] 12 NWLR (Pt. 1208) 383 SC.

 

58. The claimant had referred to the circumstances that led to the calculation of his terminal benefits arguing that even in resignation, the defendant tried to victimize and shortchange him in the ex gratia payment. The claimant then gave the particulars of the said acts of victimization as per paragraph 30(i) to (xi) of his reply to the statement of defence. In answer, the defendant submitted inter alia that the letters allegedly exchanged between the claimant and Mr Wole Eniafe were not frontloaded nor tendered in evidence; and that the said allegations/circumstances were introduced in the claimant’s reply to defendant’s statement of defence thereby denying the defendant an opportunity to answer to it. That it is trite that a reply is not a carte blanche to introduce new facts in the pleadings which is what the claimant did with paragraph 30(i) - (viii) of his reply to the statement of defence in clear violation of the time honoured rule of pleadings. The defendant then invited the Court to strike out the offending sub-paragraphs. I agree with the defendant. Ejiwunmi, JSC in Ughutevbe v. Shonowo& anor[2004] LPELR-3317(SC); [2004] 16 NWLR (Pt.899) 300; [2004] 18 NSCQR 741 put the law thus: “...a plaintiff may file a reply to the statement of defence but such a pleading, not being a petition or summons, shall except by way of amendment, raise no new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same”. I shall accordingly discountenance paragraph 30(i) to (xi) of the claimant’s reply to the defendant’s statement of defence. I so find and hold.

 

59. In the main, the case of the claimant is that of constructive dismissal. Even when in relief (a) the claimant prayed for a declaration that the defendant breached the terms of his employment, and in relief (b) he prayed for a declaration that the acts of the defendant against him during his employment constituted acts of unfair labour practice, all of these were geared towards showing that his resignation from the employment of the defendant was actually a case of constructive dismissal. However, in making a case for constructive dismissal, the claimant in relief (c) introduced a concept unknown to law i.e. “constructive unfair dismissal”. The concept is either constructive dismissal or unfair dismissal. The latter is often used to determine the quality of the dismissal where it is the employer that actually dismissed the employee. The former, on the other hand, is used where it is the employee who actually left the services of the employer but is arguing that he left because the employer’s conduct made him to leave. This Court has now acknowledged and applied the concept of constructive dismissal in the corpus of labour jurisprudence in Nigeria. Accordingly, Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (Pt. 154) 531 NIC and Mr. Patrick Obiora Modilim v. United Bank for Africa Plc unreported Suit No. NICN/LA/353/2012 the judgment of which was delivered on 19th June 2014, for instance, held that to attempt to have the employee resign, rather than outright firing the employee means that the employer is trying to create a constructive discharge. In constructive dismissal, the exact legal consequences differ from country to country, but generally it leads to the employee’s obligations ending and the employee acquiring the right to seek legal compensation against the employer especially as section 19(d) of the NIC Act 2006 permits the NIC to award compensation or damages in deserving circumstances.

 

60. In specific words, Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (Pt. 154) 531 NIC, this Court held thus:

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. See generally Western Excavating v. Sharp [1978] 1 All ER 713 and Oladosu Ogunniyi’s Nigerian Labour and Employment Law in Perspective (Folio Publishers Limited: Ikeja), 2004, 2nd Edition, at pages 462 – 464.

 

61. Now, the claimant’s case is that the defendant committed serial breaches of the contract of employment between it and the claimant, which prompted his constructive dismissal on 31stDecember 2015. Accordingly, the grounds of his action against the defendant are: breach of job description and deliberate retardation of his professional growth; denial of promotion and entitlement; and failure to address his grievances. The onus to prove all of this is on the claimant; and to be able to succeed in a claim for constructive dismissal, the claimant must show that he resigned soon after the incident(s) he is complaining about. See Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd (supra). The claimant himself agreed with the defendant that for the claimant’s case to succeed, he must prove as enumeratedin Western Excavations v. Sharp[1978] 1 All ER 713 that there is a repudiatory breach (actual or anticipatory) on the part of the employer, which must be sufficiently serious to justify the employee resigning; the employee must resign in response to the breach; and the employee must not delay too long in acting on the breach. The claimant then submitted that given the reasons he indicated in his resignation letter for his abrupt exit,his resignation is not voluntary as the defendant would want this Court to believe; rather, it is a clear case of constructive dismissal which ought to be remedied. And that he demonstrated through his testimony that from the date he produced Exhibit C3, the report of the Task Force he headed, till after he tendered his resignation letter, he suffered serial breaches of the terms of his employment and unfair treatments. Instructively, that all these happened under successive Managements. Additionally, the claimant submitted that his maltreatment by the defendantcontinued with the depletion of the workforce of his Department and the abrupt transfers out in September 2015 of his hardwon replacement staff (who he was alreadygrooming and tooling for the job) without notice, consultation or even other replacements by the defendant.Indeed, that this latter action of the defendant was the last straw that effectively emasculated the claimant and led to his tendering his letter of resignation by 2nd November 2015; barely within 2 months.

 

62. In response, the defendant submitted that the complaints of transfer to different departments (which was provided in the conditions of service) happened from 2009 through December 2014. That the claimant resigned in December 2015 purportedly for events that happened between 2009 and 2014. That all of this would amount to a complete waiver and condonation by the claimant.

 

63. I took a more a careful look at the processes and submissions of especially the claimant. The claimant puts the date of his constructive dismissal as 31st December 2015. When did the acts for which the claimant was constructive dismissed occur? This is the key to determining whether the claimant has successfully made a case for constrictive dismissal or not. I made the point that the claimant must show that he resigned soon after the incident(s) he is complaining about, citing Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd (supra). The claimant himself made the point that the employee must resign in response to the breach; and must not delay too long in acting on the breach. The first transfer of the claimant took place on 13th November 2009. See paragraph 9(A)(viii) of the statement of facts. The second transfer was on 17th February 2010, paragraph 9(A)(ix). The third transfer was on 26th November 2014, paragraph 9(A)(xi). The fourth transfer was on 18th December 2014, paragraph (A)(xiii). In paragraph 9(A)(xiv), the claimant indicated that he protested the fourth transfer. Aside form the fact that this is the first protest against his transfer, the claimant provided no substantiating evidence of this protest.

 

64. In paragraph 9(B) of the statement of facts, the claimant detailed the issues pertaining to the denial of promotion and entitlement. Promotion is neither automatic nor as of right; it is a privilege. See The Shell Petroleum Development & 5 ors v. E. N. Nwawka & anor [2001] 10 NWLR Pt. 720 64 at 84 and Abenga v. Benue State Judicial Service Commission [2006] 14 NWLR (Pt. 1000) 610 at 622. However, promotion may be litigated only where its denial was mala fide, unfair, vindictive, or a clear case of victimization. See Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC affirmed on appeal to the Court of Appeal in University of Ilorin Teaching Hospital Management Board & anor v. Mrs Abdulrahaman Yetunde Mariam [2016] LPELR-41673(CA). There is nothing in the claimant’s pleadings to show that his allegation of the defendant denying him promotion was mala fide, unfair, vindictive, or a clear case of victimization. All the claimant said in paragraph 9(B)(iv) is that after being promoted on 1st October 2009, he was due for another promotion in 2014 but was not so promoted. Since promotion is not automatic, the claimant did not show any entitlement to it in the first place. I so find and hold.

 

65. As regard entitlement to an official vehicle, the complaint of the claimant is that he was not given the official vehicle soon after his promotion. He acknowledged, however, that he was first given a used vehicle, which he rejected before he was given new one after a year. The bottom line is that he was ultimately given a vehicle.

 

66. It is the argument of the claimant that the defendant failed to address his grievances. This may be so if requests as to complementary staff as per paragraph 9(C)(ix) of the statement of facts is anything to go by, for this is the only compliant backed by documentary evidence in terms of Exhibits C12, C12(a) and C12(b). The other complaints listed out by the claimant are all unsubstantiated. They are the words of the claimant against those of the defendant.

 

67. Now, and here lies the critical issue: all the acts complained of by the claimant, acts that led to his constructive dismissal, as the defendant argued occurred predominantly between 2009 and 2014. The claimant’s resignation letter is dated 2nd November 2015 and states thus in the first paragraph: “In compliance with the applicable Staff Conditions of Service I write to notify you of my resignation of employment in the company effective 31st December 2015”. In seeking to comply with the conditions of service, can the claimant really be said to have been constructively dismissed? The claimant then listed out his grievances against the defendant and concluded that he wold wish to proceed on terminal leave later by utilizing his remaining annual leave days for year 2015 from 21st to 31st December 2015. I do not see all of this as the act of an employee constructively dismissed. Exhibit D14 dated 12/18/2015 is an email from the claimant to Managers of the defendant. In it, the claimant informed the Managers that in line with his programmed exit from the defendant, he would be proceeding on his terminal leave; and in the fourth paragraph said thus: “It has been quite a profound experience working with all of you in the company for the past eight years. We shall surely be communicating”. Once again, I do not see how this exemplifies an employee who was constructively dismissed. In his own words, his exit from the defendant is programmed i.e. planned. If he planned or programmed his exit, can that be constrictive dismissal? I do not think so.

 

68. More importantly, the claimant’s resignation took effect from 31st December 2015. I agree with the defendant that the acts for which the claimant complains and hence makes a case for constructive dismissal were acts that occurred between 2009 and 2014. This means that it took a year for the claimant to resign because of the said acts. This is tantamount to waiver or condonation by the claimant. It cannot even be that the claimant showed that he resigned soon after the incident(s) he is complaining about as Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd (supra) enjoins. As it is, therefore, the claimant has failed to prove his case. The case fails and is hereby dismissed.

 

69. Judgment is entered accordingly. Cost is put at Three Hundred Thousand Naira (N300,000) only payable by the claimant to the defendant within 30 days of this judgment.

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD