IN THE NATIONAL INDUSTRAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA
DATED: 11TH OCTOBER, 2021
SUIT NO: NICN/ABJ/106/2020
MR JAMES AKPA ………………………………………………. CLAIMANT
SARPLAST WEST AFRICA LIMITED ………………………………. DEPENDANT
DAVID I. AJABA Esq. for the Claimant
M. A. ATTAH Esq. for the Defendant
1. The Claimant instituted this action via Complaint with the accompanying frontloaded documents filed on 10th June, 2020 against the defendant for the following reliefs:
a. The sum of N6, 634,956.09 (Six Million, Six Hundred and Thirty Four Thousand, Nine Hundred and Fifty Six Naira, Nine Kobo) being outstanding salaries, entitlements and unauthorized deductions owed the Claimant by the Defendant.
b. Ten Percent (10%) interest of the judgment sum from the date of judgment till final liquidation of the judgment sum.
c. The sum N1, 000,000 (One Million Naira) being the cost of this suit.
2. The Claimant averred that he entered into the employ of the Defendant on 10/10/2006 as a cook with Tally No.294 and worked meritoriously until 31/3/2018. However, that the Defendant failed to pay the Claimant’s salaries for several months from 2015 to 2018 as well as several allowances and entitlements besides unremitted tax and pension deductions in the sum of N6, 634,956.09 (Six Million, Six Hundred and Thirty Four Thousand, Nine Hundred and Fifty Six Naira, Nine Kobo). The Claimant stated that this sordid state of affairs forced the Claimant to resign from the employ of the Defendant in 2018 after the Claimant was given clearance having worked meritoriously for the Defendant, which was supposed to precede the pay-off. However despite having been cleared by the Defendant’s company, the Claimant was not paid his outstanding entitlements. The Claimant averred that sometime after leaving the employ of the Defendant, the Claimant wrote a letter to the Defendant demanding the payment of his entitlements and subsequently via his solicitors made another demand. Although all these letters were received by the Defendant, the Defendant failed to respond to them or pay the Claimant. Thus, the Claimant instituted this suit for claim of the debt owed him by the Defendant as contained in his letters of demand.
STATEMENT OF DEFENCE of the Defendant was filed on 7th July. 2020.
3. In response to paragraph 1 of the Claimant’s statement of facts, Defendant stated that the Claimant was a causal worker with the Defendant Company from 2006 to 2010 and that the Claimant voluntarily resigned from his employment with the Defendant Company with effect from the 1st June, 2010. The Defendant in response to paragraphs 2 and 3 of the Claimant’s Statement of facts averred that the Claimant after his resignation from the Defendant Company was employed as a domestic staff of one of Defendant expatriate Staff (Mr. Valentino) who was the Defendant Company’s Site manager till sometime in 2015. And that pursuant to the contract of employment of the Defendant Company with her expatriate staff, each expatriate staff is entitled to three domestic staff, namely a driver, a cook and a cleaner. That these domestic staff were expected to be paid directly by the expatriate who employs them except the Expatriate instruct Company to pay the domestic staffs directly. Thus, that the Claimant was employed as Mr. Valentino (his Expatriate) personal cook.
4. Furthermore, that Mr. Valentino introduced the Claimant to the Defendant Company sometimes in 2010 as his domestic staff (personal Cook) and requested that the Claimant monthly allowance as agreed by Mr. Valentino that the Claimant be deducted directly from source and be paid to claimant by the Defendant company. Consequent upon this that the Defendant Company continued to pay the Claimant his monthly allowance, pension and personal income tax as instructed by Mr. Valentino. Reacting to paragraph 4 of the Claimant’s Statement of facts, Defendant stated that the Defendant Company via a Memo informed the Claimant personally that it would pay only part salary towards the end of 2014 but with a promise to offset the outstanding balances as soon as the Defendant received its money. And that the Chairman of the Defendant Company decided to employ the Claimant as his personal cook sometime in 2015, Mr. Valentino having left the company on personal arrangement. The Defendant in response to paragraph 9 of the Claimant’s Statement of facts averred that the tax deduction for 2011, 2012 and 2013 were paid based on the instruction of Mr. Valentino to the Company to deduct and pay the Claimant’s personal income Tax and pension directly from source. And that the Claimant pursuant to his resignation from the Defendant Company is not entitled to payment of salaries, allowances and other benefits directly as claimed.
5. The Defendant admitted that the Defendant Company received another letter of resignation dated February 20, 2018, the said letter of resignation was a shock to the Defendant, as the Claimant’s resignation haven been received and approved since 2010; and that the Management of the Defendant Company via a Memo dated 27th March, 2018 wrote the Claimant that his resignation was not accepted. The Defendant further averred that Company Secretary of the Defendant Company advised the Management of the Defendant Company to disregard the Claimant’s resignation and ensure that all outstanding allowance due to the Claimant be paid (if any). The Defendant in response to paragraph 29 above averred that the Claimant misconceived the nature of his relationship with the Defendant Company and the Claimant by continue to make demand for payment of outstanding salary and entitlement, since the Claimant who was no longer in the employment of the Defendant Company is not entitled to any salary or entitlement having been paid all outstanding allowance. Reacting to paragraph 18 of the Claimant’s Statement of fact, the Defendant avers that Claimant lacks the requisite evidence to substantiate these claims.
REPLY TO STATEMENT OF DEFENCE of the Claimant filed on 12th October, 2020.
6. In response to the Statement of Defence, the Claimant stated that he was employed by the Defendant and not by Mr. Valentino whatsoever and that he was not a casual staff until 2010 as stated but confirmed/full-fledged staff after the initial probation period of six months from the beginning of his employment and that he worked with the Defendant without any break in his employment from 2006 to 2018. The Claimant averred that he did not resign his employment with the Defendant until 2018 as his initial letter of resignation was not approved. Instead upon receipt of the letter, the Defendant called the Claimant for a meeting with the Accountant (Mr. Jude Nkem), Personal Manager (Mr. Friday Uba) and the Project Manager (Mr. Valentino) at which his terms of employment were improved and N10,000 was approved to be added to his salary. That he was placated in principle and he continued his employment with the Defendant until 2018 when he tendered his resignation. The Claimant averred that Paragraphs 19, 20, 21, 22, 23, 24 and 25 of the Statement of Defence are not true, as these were all made up as a spurious defence to this suit after same was filed and never existed at the date they are being claimed to have been made. And that there was never an agreement to pay the Claimant allowances instead of salary, neither did Claimant resign in 2010 nor was there ever any memo refusing his resignation in 2018.
7. Claimant stated that the Defendant is simply confused about its own record, as the payments which Defendant refers to are part payments of previous salaries which are already included in Claimant’s computation. And that the Claimant has not received any payment from the Defendant for the outstanding payments making up the sum of the Defendant’s indebtedness to him.
8. At the trial the Claimant testified as CW, adopted his written statements on oath of 10th June2020 and 12th October 2020 which were marked C1 and C2, then proceeded to tender nine other documents as Exhibits, that were marked as Exhibits C3 to C11. Three of such Exhibits C3, C4 and C8 were admitted under protest. After cross examination by the Defendant Counsel, the Claimants case was closed, and the Defendants called one Sadiq Mohammed Ali a Legal Practitioner who testified as DW, adopted his written statements on oath of 7th July 2020 and 6th July 2021 were marked D1 and D2. DW proceeded to tender 5 other documents as exhibits which were marked Exhibits D3 to Exhibits D7, all of which were admitted under protest. he was duly cross examined by claimant Counsel, the defendants closed their case and the matter was adjourned for the filing of final written addresses in line with Order 38 rule 20 (2).
DEFENDANT’S FINAL WRITTEN ADDRESS filed on 21st January, 2021.
Whether by the evidence before this court, the Claimant has proved to be entitled to the reliefs sought.
9. Learned Counsel for the Defendant responding in the negative, Counsel submitted that the onus of proof in civil case is on the Claimant and the onus never shifts until he has discharged same by proving his claims on the preponderance of evidence or balance of probability. GOV. AKWA IBOM STATE V. AKPAN (2007) ALL FWLR (PT. 874) 1916 @ 1952 PARA E. Counsel submitted that he who asserts must prove his/her assertion(s) with credible and cogent evidence. Sections 131 and 132 of the Evidence Act, 2011. G & T INVESTMENT LTD VS. WILL & BUSH LTD (2011) 8 NWLR (PT.1250) 500. Defence Counsel noted that the Claimant claimed to be an employee of the Defendant from sometime in the year 2006 as a cook until March 31, 2018, yet that the Claimant failed to plead any evidence to establish his employment relationship with the Defendant. That the law is that letter of appointment contains the basic terms of the employment of a servant by a master. JEREMIAH V. ZIREGBE (1996) 7 NWLR (PT. 460) 346; N.I.I.A Vs. AYANFALU (2007) 2 NWLR (PT.1018) 246. He argued that the relationship between an employer and his employee is generally to be found in the service agreement or letter of employment. NIG. CEMENT PLC V. OBIDIKE (2017) ALL FWLR (PT909) 186 Paras G-H; U.B.N PLC V. SOARES; A.C.B (NIG) LTD V. NWODIKA (1996) 4 NWLR (PT. 443) 470; U.B.N LTD V. EDET (1993) 4 NWLR (PT. 287) 288. Counsel posited that the law is trite by virtue of Section 222 of the Evidence Act, that when a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the documents as evidence without the consent of the other party or by the order of the court. AYOGU V. NNAMANI (2006) 8 NWLR (PT.981) 1. Counsel contended that the Claimant withheld all relevant evidence to establish that he was a causal worker with the Defendant before he voluntarily resigned from the Defendant’s employment sometime in 2010. Also, that the Claimant withheld evidence relating to his terms of employment particularly his salary as contained in his first appointment letter and that the position of the law on withholding evidence by a party is very clear. Section 167 (d) of the Evidence Act, is to the effect that when a party withholds useful evidence the presumption in law is that it would go against the party who withheld it if produced; that the presumption created is against the withholding of documentary and oral evidence. SMART V STATE (2016) 9 NWLR (PT. 1518) 447; UDEAGU V BENUE CEMENT CO. PLC. It is Counsel’s position that every employee has the right to resign from his employment whenever he desires and the resignation takes effect as indicated in the notice of resignation or as may be stipulated in the terms and conditions of the employment. That the resignation would take effect even when the employer did not expressly accept it since there is no need for the employer to reply to the letter of resignation before it become effective. ABEKHE V. ALPHA MERCHANT BANK PLC (2017) ALL FWLR (PT.914) 1023. Furthermore, that notice of resignation is effective, not from the date of the letter or from the date of the acceptance, but from the date of the letter is received by the employer or his agent. IBRAHIM V. ABDALLAH (2019) 17 NWLR (PT.1701) 293; WAEC V. OSHIONEBO (2006) 12 NWLE (PT. 994) 258. He contended that there is absolute power to resign and no discretion to refuse to accept the notice and that if resignation will only become effective after acceptance, then payment of salary in lieu of notice of resignation for the stated months will only be effective resignation after the expiration of the months for which the salary in lieu was paid; and that cannot be so. ADEFEMI V. ABEGUNDE (2004) 15 NWLR (PT. 895) 1. Defence Counsel noted that the claimant claimed in paragraph 3 of his reply to statement of defence that he did not resign his employment with the Defendant until 2018 as his initial letter of resignation was not approved. However, that the said letter of resignation-Exhibit D1 tendered and admitted in evidence clearly show that same was received and approved by the Defendant and that the Claimant failed to prove his assertion that his initial letter of resignation was not approval by the Defendant by cogent and compliable evidence before this court. That the law is trite that he who asserts must prove his/her assertion(s) with credible and cogent evidence. Sections 131 and 132 of the Evidence Act, 2011; G&T INVESTMENT LTD VS. WILL &BUSH LTD (2011) 8 NWLR (PT.1250) 500. Counsel assuming but not conceding that the Defendant did not approve the Claimant letter of resignation as claim, submitted that the law is trite that resignation would take effect even when the employer did not expressly accept it since there is no need for the employer to reply to the letter of resignation before it become effective. ABEKHE V. ALPHA MERCHANT BANK PLC (2017) ALL FWLR (PT.914) 1023. Counsel submitted that the mere fact of payment of salary of a member of staff or worker is not without more evidence that such a worker or member of staff is one’s employee. UDEGBUNAM V. F.C.D.A (1996) 5 NWLR (PT. 449) 474. Counsel noted that the Claimant only denied paragraphs 12 & 13 of the Defendant Statement of Defence among others as they are completely false, however, that the law is that bare denial amount to no denial in law. N.N.P.C V FAMFA OIL LTD (2012) 17 NWLR (PT. 1328) 147. That mere denial by the reply to statement of defence of averments contained in the statement of defence without answering to the material points stated therein amounts to an insufficient denial of the statement of defence. AGINA V. AGINA (1991) 4 NWLR (PT. 185) 358; BALOGUN V U.B.A LTD.
10. Learned Counsel submitted that only a party to an agreement/contract can sue or be sued on it. MAKWE V. NWUKOR (2001) 14 NWLR (PT. 733) 356. He pointed out that Exhibit C3 which the Claimant places heavy reliance on to prove his entitlement as contained in paragraphs 6-10 0f the Claimant Statement of fact was made on 12th Day of April, 2018.; and that it is in evidence before this court that the Claimant entered in the employment of the Defendant in 2006 and that the Claimant Voluntarily resigned from the said employment in 2010. Therefore, that the question before this court is: what relevance is Exhibit C3 to the case of the Claimant to warrant him entitled to his claims? In response, Counsel argued that collective agreement between an employer and a trade union does not create a legally enforceable contractual obligation in favour of individual employees who are members of the trade union unless the terms of the collective agreement are adopted as forming part of the employee’s term of employment or by subsequent communication varying the terms of employment of the employee. N.N.B PLC V. OSOH (2001) 13 NWLR (PT.729) 232; NNB PLC V. EGUN (2001) 7 NWLR (PT. 711) 1. It is Counsel’s submission that a contract cannot confer or impose obligations arising under it on any person, expect the parties to it. In other words, that only the parties to a contract can sue or be sued on the contract, a stranger to a contract can neither sue nor be sued on the contract. IDUFUEKO V. PFIZER PRODUCTS LTD (2014) ALL FWLR (PT.745) P. 287; MAKWE V. NWUKOR (SUPRA).On Claimant’s claim against the Defendant for the sum N1, 000, 000 (One Million Naira) being the cost of this suit, Counsel argued that the cost of litigation is in the category of special damages that must be specifically proved. F.A.H LTD V. NBC PLC (2017) ALL FWLR (PT. 882) 1222 AT 1254 PARA G.
CLAIMANT’S FINAL WRITTEN ADDRESS filed on 25th June, 2021.
Whether the Claimant has proved his case to be entitled to the reliefs sought.
11. Learned Counsel to the Claimant submitted that civil cases are decided on the balance of probabilities or preponderance of evidence, which means putting the totality of the evidence adduced by both parties on the imaginary scale; the evidence adduced by the Claimant on the one side of the scale and that of the Defendant(s) on the other side and weighed together. That the Court will then see which is heavier, not by the number of witnesses called by each party but by the quality or probative value of the testimony of those witnesses. And in determining which is heavier, the Court will have regard to whether the evidence is admissible, relevant, credible, conclusive and more probable than that given by the other. That in doing this, the Court will invoke the law if any that is applicable to the case before coming to a conclusion. ODOFIN Vs. MOGAJI (1978) 3SC PG 91; ONWUKA Vs. OMOGUI (1992)3 NWLR (PT. 230)393; Section 123(a) of the Evidence Act.
12. Claimant’s Counsel noting that the Defendant’s Counsel had made heavy weather of the lack of a letter of employment by the Claimant, submitted that the mere fact of admission by the Defendant that the Claimant was once its employee, whether casual or not, takes away the need for the Claimant to prove that he was an employee of the Defendant. That the law is trite that facts admitted need no further proof as reiterated in the case of CHUKWU & ORS v. AKPELU (2013) LPELR-21864(SC), Per OGUNBIYI, JSC. Counsel argued that the onus shifts to the Defendant to prove when the Claimant ceased to be its staff, thus, that the argument of the Defendant’s Counsel that there was no letter of employment is of no moment more so that a letter of employment is a legal obligation of the employer. And that by section 7(1) of the Nigerian Labour Act, it is the duty of the employer to provide an employee with letter of employment and the failure of the Defendant to do so in the circumstance cannot be visited on the Claimant; and that it is trite that a Court of justice cannot allow a party to benefit from his own wrong doing or avoid a liability on the basis of the omission to do an act which was the party’s responsibility. MR P.T. ADEDEJI v. DR MOSES OBAJIMI (2018) LPELR 44360(SC), per Bage, JSC. Counsel maintained that in paragraphs 3.6 to 3.10 of Defendant’s address, the Defendant’s Counsel attempted in vain to invoke section 167(d) of the Evidence Act against the Claimant for what he claims to be withholding of evidence. On the contrary, that it was incumbent on the Defendant to produce evidence in prove of its case and not to try to use the Claimant to prove its case especially when Claimant denied the existence of the document; submitting that the authorities cited by the Defendant’s Counsel in that regard are inapplicable. AROCOM GLOBAL INVESTMENT LIMITED V. UNITED PARCEL SERVICE LIMITED (2021) LPELR-52891(CA); BUHARI & ANOR. VS OBASANJO & ORS (2005) LPELR-815 (SC), EZEJIBI VS EBEGU (2016) LPELR-40507 (CA), Sections 89(a) and 90 (1) (a) of the Evidence Act, 2011. Claimant’s Counsel contended that at the time of the writing of Exhibit C9, it was obvious that the Claimant had not been paid by the Defendant. Again, that in March 2020 the Claimant via his Solicitors wrote Exhibit 10 which specifies the indebtedness of the Defendant to the Claimant as being claimed in this suit. That under cross examination, DW1 admitted that the Defendant did not respond to both Exhibits C9 and C10 although they were received by the Defendant. Counsel submitted that it is settled law that failure of a party to respond to Business Letters and to deny any statement against interest will be treated as an admission of the statements. TRADE BANK vs. CHAMI (2003) 13 NWLR (PT 836) 158, per Salami, JCA. Counsel submitted that most recently, particularly on Monday February 8, 2021, the Court of Appeal, Ibadan Division in the case of AROCOM GLOBAL INVESTMENT LIMITED V. UNITED PARCEL SERVICE LIMITED (2021) LPELR-52891(CA), held that the Appellant had a duty to respond to the Respondent’s letter of demand if it had reason to dispute the content; the Appellant’s refusal to respond to the letter amounted to an admission of the debt of N13, 749,628.75k stated in the letter. In support of its decision, that the Court of Appeal cited the following cases: NAGEBU & CO NIG. LTD VS. UNITY BANK PLC (2014) 7 NWLR (PT.1405) 42 at 81; KARIMAT GLOBAL TRADE LINKS LTD & ANOT VS UNITY BANK PLC (2014) LPELR-23986 (CA) and INTIME CONNECTION LTD VS ICHIE (2009) LPELR-8772 at page 20, Paras. D-G.
13. Counsel for the Claimant argued that Parties are bound by their pleadings. ABUBAKAR & ANOR V. JOSEPH & ANOR (2008) 13 NWLR (PT.1104)307; SALGITTER STAH (GMBH) V. TUNJI DOSUNMU INDUSTRIAL LTD (2010) 42 (PART 2 NSCQR 1085 at P.1109. It is Counsel’s position that Section 85 (2) of the Labour Act empowers the Court to award cost at the conclusion of trial and that cost follows event and parties are to be indemnified for the expenses borne by them in the proceedings. NIGERIAN SOCIETY OF ENGINEERS V. OZAH  6 NWLR (PT.1454) 76. Counsel contended that unlike the position canvassed by the Defendant’s Counsel in Paragraph 3.62, the Court of Appeal in the case of INT’L OFFSHORE CONST. LTD V. S.L.N LTD  16 NWLR (PT.845) 157 at 179, Paras A-D placing reliance on the Supreme Court case of REWANE V. OKOTIE-EBOH  SCNLR 461 held thus:
“Under the Nigerian Laws expenses incurred on services of counsel are reasonably compensated. Thus the costs will be awarded on the ordinary principle of genuine and reasonable out of pocket expenses and normal counsel cost is usually awarded for a leader and one or two juniors. In the instant case, the trial court was right in the award it made in respect of expenses incurred by the respondent for services of solicitors.”
DEFENDANT’S REPLY ON POINTS OF LAW filed on 6th July, 2021.
14. Counsel for the Defendant argued that the Claimant’s Counsel misconceived the position of law when he views in its address that, non-pleading and tendered of letter of employment by claimant is not necessary for determination of this case since the Defendant admitted that the Claimant was once its casual employee. Though, that the Defendant in its final written address clearly addressed this issue, however further stated that, Claimant failure to plead his employment letter is fatal his case. ORGAN & ORS V. NIGERIA LIQUEFIED NATURAL GAS LTD & ANOR. (2013) LPELR-20942(SC). In response to the Claimant’s counsel stated that the Defendant had admitted employment of the Claimant which need no proof as such admitted fact is no longer a fact in issue, Counsel argued that this position of law is misconceived by the Claimant’s Counsel citing U.B.A Plc. v. Ibachem Ltd (2014) 6 NWLR (Pt. 1402) 154-155.
15. Counsel assuming but not conceding that the letter of employment of the Defendant is not required to proof the terms of employment of the Claimant, submitted that the Claimant entered into the employment of the Defendant and voluntarily resigned from same, he therefore requested for payment of his entitlement which is the subject matter of this action. That the question is what type of employment relationship existed between the Claimant and the Defendant? What are the agreed terms of engagement, on what bases is the Claimant claiming his entitlement? And that all of these questions have not been answered by the Claimant. Defendant’s Counsel noted that the Claimant’s Counsel also made copious assertions that Exhibit D Claimant’s resignation letter in 2010 which was tendered and admitted in evidence without any objection from the Claimant’s Counsel “is of no moment in the light of many other documents in the case which...”, submitting that the law is trite that address of counsel cannot that the place of evidence. That the Claimant Counsel cannot determine what evidence is of moment and not. Adeleye v. State (2015) 3 NWLR (Pt. 1446) 246; Andrew v. INEC (2018) 9 NWLR (Pt. 1625) 565.
16. It is Counsel’s contention that Claimant has failed to establish with sufficient evidence his claims and that the law is trite that the case of a plaintiff/Claimant stands or falls upon his own evidence and not upon the weakness of the defence and that he who asserts must prove. WAEC v. Oshionebo  12 NWLR (Pt. 944) 265; Chime v. Chime (1995) 6 NWLR (Pt. 404) 734.
17. I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. I shall also make reference to the response of parties to the two question posed by the court suo moto with regard to the existence of an unfair labour practice and the concept of Joint / Co-Employment The issue for determination in this suit to my mind is whether the claimant has established an employment relationship, considering inter alia the letter of resignation of 2010 to justify an entitlement to the reliefs sought in this suit.
18. In the course of this trial both parties raised objections to various documents but failed to properly address these objections separately in their final addresses to enable this court resolve the observation in one fell swoop. Be that as it may the court will adopt a procedure of dealing. with the objection with the relevant contention raised. Both parties bandied around legal contentions in support of their various arguments most of which were under applied or mis applied others were inapplicable.
19. I shall address these mis-conceptions before resolving the issue of merit, both parties made heavy weather with regard to the letter of employment. The defendants argued that the failure to produce a Letter of Employment, is fatal to the Claimant case and continued that Section 169(d) of the Evidence Act implies a presumption that a withheld documents is guiltily ’withheld. The claimant countered with having proved employment anything else was unnecessary, and that the Defendant had not issued him with an employment letter and could not be allowed in law to benefit from his misdeed. The Defendants had also objected to Exhibit C8 the NJIC arguing that the Claimant had not pleaded or proved entitlement there to. The defendants has also raised issues with the legal effect of resignation arguing that having resigned in 2010 there was no basis to consider any employment claims after that date. The Claimants countered that the 2010 resignation was not accepted and that the parties went on to renegotiate the employment terms e.g. a salary increase.
20. I shall now address these and other misconceptions. The position of law with regard Resignation
21. The basic law, by Yesufu v. Gov. Edo State  13 NWLR (Pt. 731) 517 SC, is that a notice of resignation of an appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed. This is because there is absolute power to resign and no discretion to refuse to accept; and it is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted. It is not in doubt that the defendants received Exhibit C5, the resignation letter of the claimant, on 20/07/2010, the very date the letter itself was written by the claimant. The resignation of the claimant accordingly took effect from 20th July 2010 i.e. with immediate effect as the claimant desired. What is the legal effect of having to resign with immediate effect as the claimant did in the instant case? In WAEC v. Oshionebo  12 NWLR (Pt. 994) 258 CA, it was held that a notice of resignation is effective not from the date of the letter, or from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent; and that tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer (emphasis is this Court’s). And by NNPC v. Idoniboye-Obu  1 NWLR (Pt. 427) 655 CA and NEPA v. Isiereore  7 NWLR (Pt. 511) 135 CA, where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment of salary in lieu of the length of notice and the latter course is chosen, the party seeking to end the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not even enough that in the letter of termination he offers to pay salary in lieu of notice. See Abayomi Adesunbo Adetoro v. Access Bank Plc unreported Suit No. NICN/LA/293/2013 the judgment of which was delivered on 23rd February 2016 where these principles of law were applied.
22. The rule to note here is that tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to the employee paying any of his indebtedness to his employer. Resignation with immediate effect by an employee carries with three legal effects: the right to leave service automatically; the employee’s forfeiture of any benefit; and the employee paying any indebtedness to his employer. The justification for having to allow the resigning employee to leave immediately and automatically is the fact that he thereby forfeits any benefit he may be entitled to as well as the duty to pay off all indebtedness that he may towards the employer; as such, the forfeiture of benefits inures as contractual consideration for the immediate and automatic separation of contractual relationship as per the employment in issue. So it cannot be that an employee who resigns with immediate effect is allowed to also benefit from such immediate separation by claiming benefits from the employer. What all of this means is that in the instant case, given that the claimant resigned his appointment with immediate effect he cannot thereby claim any benefit from the defendants. See SUIT NO. NIC/LA/140/2011 MR. BELOVED PATRICK ANOKWURU VS. OMATEK VENTURES PLC &ANOR delivered on the 17th March 2016.
23. Looking at the situation before the Court I find that the argument of the Defendants that the employment relationship between them and the claimant is untenable particularly when considered in addition to the above, to situations where the parties submits a letter of resignation as a means to compel his employer review the terms of employment. In the instant case the claimant maintains that in 2010 the employer after receiving his letter of resignation called him into the office and offered him an increase in salary inter alia. As long as the Claimant accepts the increase in salary and other new terms the Contract I find subsists. I resolve this issue in favour of the Claimant.
24. With regards to the Letter of Employment I am very aware the Supreme Court in ORGAN & ORS v. NIGERIA LIQUEFIED NATURAL GAS LTD & ANOR (2013) LPELR-20942(SC). held that “The letter of employment is the bedrock on which any of the appellants can lay claim to being employees of the respondent and without the production of such a document, no employment can be inferred. The employees' Handbook issued by 1st Respondent is not a substitute for the letter of employment." Aka’ahs, J.S.C (P. 57, paras. E-F). However the effect of the absence of letter of employment of a claimant in an action for wrongful termination/dismissal will depend on the nature of evidence adduced before the court. Failure of a claimant to tender his letter of appointment will not be fatal to his case if he is able to show by evidence that his/her clams are based on the Employer’s Handbook and not the Letter of Employment…It is the defendant who asserts that the terms and conditions of the claimant’s employment are contained in the Letter of Appointment that needs the Letter of Appointment to ground his case and not the claimant. See DURUGBOR v. ZENITH BANK PLC (2014) 40 NLLR (PT. 122) 225.
25. AND bearing in mind that contracts can be oral by parole, written or shown by conduct and considering that this court has held that the refusal to give an employee a letter of employment is tantamount to an unfair labour practice on one the one hand.
26. And considering the defendants contention with regards to the right to invoke the entitlements in a collective bargaining instrument that the law requires the claimant to prove to the court that he is a member of the particular union or employee association whose collective agreement he seeks to evoke, HABU V. NUT, TARABA STATE  4 FWLR (Pt. 283) 646 It is pertinent to note that membership of a union is a function of law, not a collective agreement. In the case as CORPORATE AFFAIRS COMMISSION V. AUPCTRE  1 NLLR (PT. 1) 1 NIC, this court held that for junior staff, eligibility is the yardstick for determining membership of a union was the right to opt out; while for senior staff actual membership is the rule was the right to opt in. In other words, a senior staff is not deemed to be a member of a union i.e. membership of ASSBIFI is not automatic. He/she must specifically, individually and in writing opt out to be a member before he/she can be held to be a member. As the provisions of the collective agreement does not confer membership. SeeMR. MUMUNI ADEKUNLE YUSUF-ODEDUNTAN Vs. WEMA BANK PLC, NICN/IB/68/2013 (Unreported) delivered on 29th September 2014. By the authority of HABA V. NUT, TARABA STATE  4 FWLR (Pt. 283) 646 supra, check-off dues of a worker and the remittance of same to a trade union is an incidence of membership of the worker whose statutory right is mandatorily for or vested by the Labour Act. However in the this case the claimant is not a senior staff and as such is not required to prove membership as membership for junior staff is statutory and mandatory. I resolve these issues in favour of the Claimant.
27. In support of their respective case the parties tendered the under-listed documents as exhibits.
A. National Joint Industrial Council (NJIC) Agreement’
on Terms and Condition of Service for Junior Employees
in the Engineering Industry in Nigeria - Exhibit C3
B. Defendant’s letter to dated 1/8/2014 - ExhibitC4
C. Certificate for the years 2011, 2012 and 2013 - ExhibitC5
D. Claimant’s resignation notice dated 2/2/2018 - ExhibitC6
E. Defendant’s letter dated 17/7/2018 - ExhibitC7
F. Clearance dated 7/8/2018 - ExhibitC8
G. Claimant’s demand letter dated July 12/7/2018 - ExhibitC9
H. Claimant’s Solicitors’ Letter dated 4/3/2020 – ExhibitC10.
28. The Defendants tendered the following documents which were admitted as such:
a. Claimant’s purported resignation letter dated 1/6/2010 -Exhibit D1
b. Defendant’s Memo dated 29/3/2018 - Exhibit D2
c. FCMB Cheque dated 15/8/2018 - Exhibit D3
d. FCMB Cheque dated 5/9/2018 - Exhibit D4
e. FCMB Cheque dated 6/12/18 -Exhibit D5
f. FCMB Cheque dated 20/12/18 - Exhibit D6
g. Certificate of Identification dated 16/12/2020
29. From the documents before the court it became clear that the parties operated an Employer/ Employee working relationship commonly referred to as Master and servant Relationship.
30. As for the defendants arguments that the Claimant was a Casual worker,a non workeror worked directly as a domestic staff to Mr. Valentino and the defendant’s explanation as the payment mode adopted by the Defendant and domestic staff of expatriate workers d and salary payment of all no moment when this court has in certain cases upheld the existence of triangular or co employment. See PENGASSAN VMOBILE PROD. NIG. LTD.  32 NLLR (Pt. 922) 34.
31. The clamant grouse is that the working environment of not being fully paid and erratic payments became overly unbearable and the sordid state of the affairs constrained him to tender his resignation. This I find amounts to a case of Constructive Dismissal. Constructive dismissal is also called constructive discharge. It is a term and a cause of action recognized by this Court. In the recent decision of this Court in Mr David A. Fadipe v. Cedarcrest Hospitals Limited unreported Suit No. NICN/ABJ/147/2018, the judgment of which was delivered on 8th July 2020, this is what this Court said of constructive dismissal or constructive discharge quoting from some of its previous decisions:
“This Court recognizes the concept of constructive dismissal, which in a nutshell means the attempt to have the employee resign, rather than outright firing the employee. This signifies that the employer is trying to create a constructive discharge or constructive dismissal. Also in Miss EbereUkoji v. Standard Alliance Life Assurance Co. Ltd  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  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.”
I resolve this matter for the claimant.
32. Now with regard to the defendant’s contention that they had paid the claimant his salaries month to month, I find this cannot be borne out from their exhibits. The defendants are required to present this court uninterrupted evidence of salary payments monthly; - this they have not done.
33. The Claimant in this suit had pleaded and proved that his salaries where arbitrarily deducted and paid sporadically creating a hardship leaving him with no other option than to resign.I find for the claimant in constructive dismissal also.
34. I will now look at the other issues as to costs, Taxes and Pensions together with the reliefs as specified in averment 5 of the claimant statement of fact particularly averments 9 and 10 as regards pensions and Taxes. The claimant has failed to show the court the authority which would empower him to claim or which would sanction this court ordering that Tax deductions or pension remittances should be paid to him the claimant. In the instant suit, the claimant is praying this Court to order that the said pension contributions duly deducted be paid to him be paid to him. I find that there is no precedent to the grant of such an order. This Court held in SUIT NO. NIC/LA/140/2011 MR. BELOVED PATRICK ANOKWURU VS. OMATECK VENTURE PLC AND ORS delivered on the 17th March 2016, that Where a statute orders that remittances are to be made to a named body, it is not open to this Court to rule that such remittances to be made to an employee even if the employee is the ultimate beneficiary of the remittances in issue. Remittances under the Pension Reform Act 2004 (note that as relates to this case, the cause of action is as governed by the 2014 pension Reform Act, not the 2004 Act, because the cause of action arose upon the claimant’s resignation in 2018) fall under this rule. This Court cannot, therefore, accede to the claimant’s prayer that the said pension contribution be paid to him. Neither can the Court order that the said pension contribution be paid to the claimant’s PFA since there is no evidence before the Court who the PFA of the claimant is. The claim for pension contributions accordingly cannot be granted and so is hereby merely struck out.
35. All in all the claimants case succeeds but only thus far:
i. The claimants claim for long service awards and other items such as a colour TV are in this court considered ex gratia payment given at the complete discretion of the employer and therefore not grantable.
ii. Also this court does not grant pre judgement interest. See KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED  27 NLLR (PT. 78) 374
iii. Judgement for the claimant in the sum of N6, 206,917.63 (Six Million, Two Hundred and Six Thousand, Nine Hundred and Seventeen Naira, Sixty - Three Kobo) being outstanding salaries, entitlements and unauthorized deductions owed the Claimant by the Defendant.
iv. The sum N200,000 (Two Hundred Thousand) being the cost of this suit.
36. All money to be paid within 60 days thereafter 10% interest will attach.
37. Judgement is entered accordingly.
HON. JUSTICE E. N. AGBAKOBA
JUDGE COURT 3