MURTALA ALIYU IBRAHIM -VS- FEDERAL MORTGAGE BANK OF NIGERIA

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE

DATE: FEBRUARY 25, 2025

SUIT NO: NICN/ABJ/271/2021

BETWEEN

MURTALA ALIYU IBRAHIM CLAIMANT

AND

FEDERAL MORTGAGE BANK OF NIGERIA DEFENDANT

REPRESENTATION

Hussaini Hussaini for the Claimant, with Yahaya Mohammed Yusuf.

Kelechi Nwaiwu for the Defendant, with Lucy C. Onyebuisi

JUDGMENT

Introduction and Claims

[1] The Claimant filed this complaint against the Defendant on October 04, 2021 together with the accompanying processes. By an amended originating process filed on 16 November 2022, the Claimant is seeking for the following reliefs:

I. A Declaration that the query issued on the 5^th of March 2019 by the Defendant against the Claimant during the time the Claimant was observing his leave, was illegal, malicious, null and void and of no effect.

II. A Declaration that the dismissal of the Claimant by the Defendant without adherence to the laid down procedures enshrined in the Defendant’s Staff Conditions of Service was illegal, null and void, and of no effect.

III. A Declaration that the dismissal of the Claimant by the Defendant without adherence to the due process of law and with an ill motive was malicious.

IV. A Declaration that the dismissal of the Claimant by the Defendant without giving the Claimant an opportunity to be heard is a breach of the Claimant’s fundamental human right to fair-hearing, unconstitutional, null and void and of no effect.

V. A Declaration That the Publication made by the Defendant on page 20 of the Daily Trust Newspaper of 7^th October 2019 under the title “Disclaimer” was Defamatory/libellous and has caused the Claimant irreparable harm and liable for damages.

VI. A Declaration that the Publication made by the Defendant in the Daily Trust Newspaper of 7^th October 2019 with the Defendant’s knowledge of the Claimant’s challenge of his dismissal and making bold fonts emphasis to the public “NOT TO ENGAGE IN ANY TRANSACTION” with the Claimant was defamatory, libellous, malicious and injurious to the Claimant’s image and relationship with the general public.

VII. A Declaration that the Claimant is entitled to his promotion to the rank of Principal Manager effective from 1^st January 2019 and all his outstanding promotions as at the time of the delivery of the judgment of this Honourable Court until his effective reinstatement.

VIII. An Order of this Honourable Court Directing the Defendant to reinstate the Claimant to his position in the employment of the Defendant.

IX. An Order of this Honourable Court Directing the Defendant to grant the Claimant all his outstanding promotions as at the time of the delivery of the judgement of this court and any subsequent promotion the Claimant may be due for until the order of this Honourable Court is duly enforced.

X. An Order of this Honourable Court of perpetual injunction restraining the Defendant from further harassment and unfair treatment of the Claimant.

XI. An Order of this Honourable Court compelling the Defendant to pay to the Claimant the sum of N19, 248,766.86k (Nineteen Million, Two Hundred and Forty-eight Thousand, Seven Hundred and Sixty-six Naira, Eighty-six Kobo) as special damages for unpaid salaries, bonuses and allowance which remained unpaid between the period of 20th March 2019 to 31st of August, 2021 and subsequent months as may be computed until the final liquidation of the total sum.

XII. An Order of this Honourable Court directing the Defendant to pay the sum of N150, 000,000.00 (One Hundred and Fifty Million Naira) as Compensation for emotional anguish caused to the Claimant due to the wrongful dismissal of the Claimant from the service of the Defendant.

XIII. An Order of this Honourable Court directing Defendant to publish a full-page retraction of the said false publication together with a public apology to the Claimant on the front page of the Daily Trust Newspaper.

XIV. An Order of this Honourable Court directing Defendant to make a full-page public apology to the Claimant for the embarrassment and public ridicule suffered by the Claimant as a result of its offending publication on the Claimant, same to be published on three other national newspapers viz; The Nation Newspaper; Daily Nigerian Newspaper and This Day Newspaper.

XV. An Order of this Honourable Court compelling the Defendant to pay the sum of N500, 000,000.00 (Five Hundred Million Naira) to the Claimant as punitive, aggravated, and exemplary damages for the public ridicule, loss of reputation, loss of opportunities and emotional anguish suffered by the Claimant due to the defamatory, false and reckless publication of 7^th October 2019 made against the Claimant by the Defendant.

XVI. An Order of this Honourable Court compelling the Defendant to pay the sum of N500, 000,000.00 (Five Hundred Million Naira) to the Claimant as general damages for the defamatory report against the Claimant in the Daily Trust Newspaper publication of 7^th October 2019.

XVII. An Order of this Honourable Court for the sum of N3, 000,000.00 (Three Million Naira only) as cost of this action.

XVIII. Interest on the entire judgment sum at the rate of 15% per annum from the date of judgment till same is liquidated.

XIX. Such Further Order(s) as this Honourable Court may deem fit to make in the circumstances.

[2] The Defendant filed an amended statement of defence together with the accompanying processes and a counter claim on February 14, 2023. The Defendant counter claimed as follows:

a) A Declaration that the Claimant did not secure leave of absence in accordance with the Staff Conditions of Service from 21.01.2019 till 20.03.2019 the period he was absent from work.

b) A Declaration that the Claimants dismissal was in accordance with the terms of his reinstatement and the defendant’s staff conditions of service.

c) A Declaration that the Defendant/Counter-claimant is entitled to a refund of the entire 2018 salaries and entitlements which was paid to the Claimant during the period he was working with Baze University.

d) A Declaration that the Defendant/Counter-claimant is entitled to the Claimant’s salaries and entitlements for the months of December 2018, January and February 2019.

e) Interest at 21% on 2018 salary and entitlements which was held over by the claimant since date of reinstatement and payment till the date judgment is delivered and until the entire sum is fully liquidated.

f) Interest at 21% on the December 2018, January and February 2019 salaries and entitlements which has been held over from date of payment till date judgment is delivered and until the entire sum is fully liquidated.

g) Cost of litigation in the sum of Ten Million Naira only (N10,000,000.00)

[3] The Claimant filed a reply to the statement of defence, and a defence to the counter claim on March 28, 2023.

Case of the Claimant

[4] The Claimant’s case on the pleadings is that he was employed by the Defendant as a Senior Manager by a letter of offer of appointment dated 1^st April 2010 and has been in the employment of the Defendant till his dismissal on 26^th September 2019. The Claimant averred that the Defendant confirmed his appointment by a letter dated 31^st August 2012. He stated that he rose through the rank in the employment of the Defendant to assist the office of the Managing Director/Chief Executive (MD/CE) and subsequently became the Head, Training Unit of Organisational Resourcing Department of the Defendant. The Claimant averred that he was later transferred to the Internal Audit and Due Process Unit as the second most senior officer of the Unit. The Claimant further averred that he attained the peak of his professional career by becoming a Fellow of the Institute of Chartered Accountants of Nigeria on 26^th April 2017, and that he is also a Member Chartered Institute of Public Finance and Accountancy, United Kingdom. He also stated that he has a First Class degree in Accounting, M.Sc in Finance, and a PH.D in Finance and Banking.

[5] The Claimant averred that sometime in the year 2016, he and his superior during the course of their official duties submitted a report to the Defendant’s Acting MD/CE by a memo titled “Report On The 2016 Half Year Income Audit” dated 14th October 2016. Consequent upon the report, they were both targeted for intimidation and harassment by the Defendant’s management. The Claimant further averred that the Defendant terminated his appointment and he petitioned the office of the Honourable Minister of Works who constituted a committee of senior officers of the Ministry of Works and Housing to review his petition. The committee after inviting all parties submitted its report to the Minister; and the Minister’s decision was to reinstate him. The Claimant averred that the Defendant issued him a letter of reinstatement dated 24^th December 2018, and thereafter he reported to the Taraba State office of the Defendant which was his last posting. The Claimant stated that he also received a warning of impeding termination of his studies if he failed to continue with it, which he earlier deferred during the subsistence of his wrongful termination due to lack of funds by a letter sent from University Utara, Malaysia dated 6^th September 2019.

[6] The Claimant stated that upon his resumption, he applied for his outstanding annual leave of 2018 and that of 2019 to attend to his self-sponsored, duly approved PhD studies in Malaysia through a memo addressed to the State Coordinator, Taraba State Office, was duly transmitted by the Taraba State Coordinator to the Group Head, Human Resource Management (GHHRM) of the Defendant. The Defendant declined his request for annual leave by a Memo from the Group Head, Human Resource Management. The Claimant stated that on the 13^th day of January 2019, his wife, Sekinat Adamu Ibrahim was delivered of a baby boy and the delivery came with some complications. He stated that he applied for compassionate leave by a memo dated 16^th January 2019 to enable him leave Jalingo, Taraba State, and attend to his wife’s urgent medical need in Abuja, but the leave application was denied by a Memo dated 16^th January 2019. The Claimant averred that he subsequently went to the Headquarters of the Defendant in Abuja and orally pleaded with its current substantive Managing Director, Arch. Ahmed Musa Dangiwa to approve a leave of absence for him to attend to his ailing wife and the Managing Director gave him a verbal approval of a leave of absence without pay for the period of 21^st January to 19^th March 2019; and permitted him to attend to his wife and send his application through the Taraba State Coordinator which he did.

[7] The Claimant stated that the formal communication of the approval of his leave of absence was delayed till the 4^th of March, 2019 and the approval was granted to him by a Memo from the office of the GHHRM dated 4^th March, 2019 to commence from 1^st March, 2019 and to end Tuesday, 30th April, 2019. The memo was received at the Taraba State office of the Defendant on the 18^th of March 2019 as contained in the incoming mails register of the Taraba State office of the Defendant. The Claimant stated that on 5^th of March, 2019 the GHHRM issued him a query alleging that he was absent from office since the 21^st of January, 2019 and requesting him to explain his absence to the management by Monday, 11^th March, 2019. The Claimant averred that the issuance of the query was malicious. The particulars of malice are that he was at his work station in Jalingo, Taraba State on 21^st January 2019 and the day he submitted his application for leave of absence without pay; the Defendant having officially approved his leave of absence to begin the 1^st of March 2019 knew or ought to know that he was not present in the Taraba State office to answer the query issued against him on 11^th of March 2019; the Defendant in its query showed ill-motive; the Defendant knew he had a family medical emergency.

[8] The Defendant came to the conclusion on his alleged misconduct without waiting for his explanation; the query was fraudulently recorded to have been received in the incoming mails register of the Taraba State office on the 7^th of March 2019. The Claimant averred that by Article 90.3 of the Defendant’s Staff Conditions of Service, a query should be issued by the immediate or supervisory superior but that the query was issued directly by the GHHRM of the Defendant. The Claimant stated that he later resumed work in the Taraba office on 20^th of March 2019 based on the initial approval of his leave. He acknowledged receipt of the query issued and responded to it through the Taraba State Controller by an internal memo dated 25^th March 2019 explaining the reasons for his absence.

[9] The Claimant averred that to avoid the termination of his PhD studies in Malaysia, he further applied for an extension of his leave in order to visit Malaysia on his PhD via a Memo addressed to the GH HRM dated 15^th April 2019. The Claimant further averred that when he reported to his office in Jalingo, Taraba State on the 4^th of May 2019, he was denied access by the Taraba State Controller and was informed that the Defendant had dismissed him, and the letter of dismissal will be sent to him when it is received from the Defendant’s headquarters. The Claimant stated that having been denied access to his office and having received no response to his earlier Memo, he decided to quit his job to pursue his PhD in the event that the Defendant did not wish to grant his request for leave. The Claimant stated that he wrote another Memo directly to the GH (HRM) of the Defendant dated 8^th May 2019 seeking for the approval of his leave of absence or the acceptance of his resignation. That he later got a wind of the fact that the Defendant had already resolved on the 18^th of March 2019 to dismiss him from its service which fact was later confirmed by the Managing Director of the Defendant, Arch. Ahmed Musa Dangiwa before the House of Representatives on the 19^th of November 2019.

[10] The Claimant stated that he further wrote a letter titled “Re: Approval for Two Months Leave of Absence – Resignation of Appointment” dated 24^th July, 2019 to the Defendant in which he enclosed a cheque for the sum of N1,164,451.74k (One Million, One Hundred and Sixty Four Thousand, Four Hundred and Fifty One Naira, Seventy Four Kobo) as three (3) months’ salary in lieu of notice, having been denied access to his office and without receiving any communication from the Defendant on his first and second Memo. The Claimant stated that the Defendant stopped the payment of his salary and all entitlements from the month of February 2019 despite the expiration of the leave of absence officially granted to him. The Claimant further stated that he petitioned the National Assembly by letter titled “Persecution at the Federal Mortgage Bank of Nigeria (FMBN): Petition on stoppage of entitlements including the right to go on an annual leave, leave of absence, transfer of service, and even resignation” dated 15^th August 2019, seeking for the intervention of the National Assembly having received no communication on his three correspondences. The Claimant stated that the Defendant consequently served him a notice of “Dismissal” dated 26^th of September 2019.

[11] The Claimant stated that his dismissal was illegal, malicious and a breach of his fundamental human rights. The dismissal letter stated that “your services are no longer required”; and he was neither informed nor charged with any of the offences contained in article 89 of the Staff Conditions of Service. The Claimant averred that no Disciplinary Committee was set up by the Defendant to investigate the alleged infraction. That the former head of human resource of the Defendant Mr Bukar Sabo and the Managing Director, Arch. Ahmed Musa Dangiwa admitted before the House of Representatives Committee on Public Petition that they did not invite him before any disciplinary committee prior to his dismissal.

[12] The Claimant stated that the Defendant commissioned Daily Trust Newspaper to publish an offending publication contained in page 20 of the said Daily Trust Newspaper of 7^th October 2019. That the Defendant knew and had reasons to know that the publication contained in page 20 of the said Daily Trust Publication of 7^th October 2019 was false and that he had petitioned the National Assembly and the Honourable Minister of Works and Housing seeking for their intervention against his persecution and illegal dismissal. The Claimant averred that the Defendant knew that the offending publication is capable of eroding public confidence in him and capable of and indeed caused injury to his reputation. That the words used in the offending paragraphs by their ordinary meaning meant and were understood to mean that he is a dishonest person who should not be trusted by any member of the public. The Claimant stated that the Defendant knew and had reasons to know that the offending publication was false and pursuant to an illegal dismissal. The Claimant averred that after the offensive publication of the disclaimer, he received many calls from family and friends seeking to know the reason behind the publication that contained his name, picture and a warning to the public not to transact any business with him.

[13] The Claimant stated that upon the Defendant’s letter of dismissal and the publication he secured a job as a Partner with GRM Consulting in Abuja and his Partnership was abruptly terminated due to the discovery of the dismissal and the said publication through an email dated 20^th August, 2020. The Claimant averred that he received several invitations for interviews for various jobs after his dismissal and was not employed on account of his dismissal and the offending publication. The Claimant stated that he wrote a letter to the Defendant dated 16^th October 2020 in which he complained about his lost opportunities due to his dismissal. That he also petitioned the Honourable Minister of Works and Housing by a letter dated 4^th November 2020 to direct the Defendant to either notify the official reason for the dismissal or reverse It. He stated that the Minister instructed the Ministry to invite him to an Investigative Committee meeting by a letter dated 29^th January 2021.

[14] The Claimant averred that he attended the hearing of the Committee and thereafter the Defendant dispatched a letter dated 1^st September, 2021 instructing him to accept the offer of converting his dismissal to “termination of employment without financial implication to the bank.” That having exhausted all his efforts to amicably resolve his issues with the Defendant, he decided to approach the Court for redress and sent a letter dated 27^th September 2021 to the Defendant rejecting the Defendant’s offer of conversion of his dismissal to termination and all the threats contained in the Defendant’s letter of 1^st September 2021.

[15] The Claimant testified as CW2 and his wife Mrs. Sekinat Adamu Ibrahim testified as CW1. They adopted their statements on oath, which were in the exact terms of the pleadings. CW1 adopted her statement on oath as her evidence in the suit. During cross-examination, CW1 told the Court that it is correct that she has never worked for the Defendant. She confirmed that all the information in her statement on oath is what was given to her by her husband. That her husband carries out some consultancy services.

[16] The Claimant (CW2) in cross-examination informed the Court that the videos are proceedings of the National Assembly, and that he obtained them from the person recording for the National Assembly. CW2 stated that there was no report issued by the National Assembly Committee on Public Petitions; and that he did not challenge the Ministerial report and his letter of termination of 8^th May, 2017 in a Court of law. CW2 admitted that there are no findings in the ministerial report that he was targeted and maliciously treated. CW2 informed the Court that he was told to report back to work by t on 30^th December, 2018. He admitted that the Ministerial Investigative Committee report found that he used foul language and breached the oath of secrecy. CW2 confirmed that the letter of reinstatement was the basis for his reinstatement; and stated that he did not accept all the terms of the reinstatement but did not write to the Defendant rejecting any. CW2 confirmed that it is correct that his conditions of service does not provide for oral leave, and stated that he had no proof the Managing Director gave him permission to proceed on leave from 21^st January 2019 to 19^th March 2019. CW2 told the Court that he did not state in his reply to the query that he was granted leave in principle.

[17] CW2 told the Court that he did not accept the terms of the letter of reinstatement and so the Defendant was not entitled to summarily dismiss him. CW2 stated that he did not accept by conduct the terms of the reinstatement even when he accepted the monies paid to him. CW2 denied that he did not comply with the defendant’s internal dispute resolution processes. He stated that it was because he was sent away from the office, and so he went to the National Assembly. CW2 denied that he accepted by conduct the terms of his reinstatement when he accepted the monies paid to him. CW2 confirmed that he was not in the Defendant’s employment on the date of the newspaper publication. He said he stopped the cheque because the Defendant did not accept his resignation, and he confirmed that he did this after the Defendant presented the cheque. CW2 informed the Court that he is currently the Financial Controller of Shafa Oil.

Case of the Defendant

[18] The Defendant’s case on the pleadings is that the Claimant undertook the regular procedure for employment into its institution and was in its employment until his employment was summarily dismissed in line with the staff condition of service, terms of reinstatement and the Public Service Rules. The Defendant averred that it approved the Claimant’s request to pursue a Ph.D program on part-time basis but the approval was subject to the terms stated in the letter of approval. The Defendant stated that Audit reports were prepared based on the standard of the Defendant’s management to ensure probity at all times. That the assignment given to the Internal Audit Group was a routine process as every payment intended to be made must go through the necessary checks and audit; and that any audit report prepared was because it was the duty of the Audit Group to prepare the report as and when due by the institution’s operational standards. The Defendant stated that the Claimant and his superior in the Internal Audit were not in any way targeted for harassment or intimidation as alleged.

[19] The Defendant stated that the Claimant committed acts of misconduct and indiscipline by the use of foul and abusive language, false allegation against the management of the Defendant and insubordination which acts are grounds for termination of the services of the Claimant pursuant to staff conditions of service. The termination of his appointment by letter dated 8^th May 2017 was borne out of the decision of the Executive Management Committee after receipt of the Management Disciplinary Committee (MDC) findings and in line with Article 90.23- 90.26 of the staff conditions of service and Chapter 030402 of the Public Service Rules. The Defendant stated that the Claimant petitioned the Minister of Power, Works and Housing and the Ministry in turn informed the management that a Ministerial committee was set up to look into the matter and gave its report/findings. The report of the committee found in part for the Claimant in respect of some of his complaints but largely agreed with the decision of the Executive Management Committee of the defendant, enumerating the offences committed by the Claimant which includes the use of foul language and the breach of the oath of secrecy.

[20] The Defendant averred that the Ministerial Investigation committee directed that it reinstate the Claimant and made several other recommendations. The Defendant further averred that in accordance with the directive of the Hon. Minister, the Claimant was issued a letter dated 24^th December 2018 stating the terms of his reinstatement; and the Claimant responded on 27^th December, 2018 accepting the terms of his reinstatement. The Claimant was subsequently issued an internal memo dated 28^th December, 2018 confirming his reinstatement and to assume duties in Taraba State together with a Warning Letter dated 28^th December, 2018. The Defendant averred that the Claimant’s response dated 27^th December, 2018 accepting the terms of his reinstatement amounts to part of the terms of his employment.

[21] The Defendant stated that the Claimant failed to comply with the Staff Conditions of Service in ventilating his grievance, but rather petitioned the office of the Honourable Minister and went as far as copying his petition to the Inspector General of Police (IGP), Economic and Financial Crimes Commission (EFCC) and the Department of State Services (DSS). The Defendant averred that the Claimant gave out information regarding the Bank on social media contrary to the oath of secrecy that he swore to uphold. The Defendant stated that no sooner had the claimant been reinstated, paid all his entitlements and expected to resume duty at the Taraba office, he began making several applications for a non-existent “outstanding leave” first of which came on 31^st December, 2018 requesting for leave for the year 2018 and 2019. The Claimant was just reinstated after being away from work for almost two years and his first official act was to request for 50 working days as outstanding leave, and all this while he failed to report to duty at the Taraba office.

[22] The Defendant further stated that the leave application request by the Claimant was declined on 14^th January, 2019; the decision of management was in line with the Staff Conditions of Service as the claimant was not entitled to year 2018 leave, and he was not qualified for year 2019 leave as a staff must have worked for a minimum of 6 months before being entitled to annual leave. The Defendant stated that it was in receipt of a letter from NISA Premier Hospital that certified the Claimant’s wife to be in stable general condition. The Defendant stated that the Claimant’s application for compassionate leave was refused on 16^th January 2019 in line with the Staff Conditions of Service. The Defendant stated that there was no evidence that the Claimant’s wife was ill and he was employing every means necessary not to resume duty fully. The Defendant further stated that the alleged verbal leave said to be granted to the Claimant is alien and not provided in the Staff Condition of Service. The Defendant averred that the Claimant absconded from his duty post on the 21^st January 2019 without prior permission, and this prompted the State Coordinator to report his absence from duty by a memo dated 27^th February, 2019.

[23] The Defendant stated that it approved the leave of absence from 1^st March 2019 – 30^th April, 2019; and stated that the management received a memo from the State Controller dated 27^th February, 2019 informing management of the absence of the Claimant from his duty post from 21^st January, 2019. The Claimant was issued a query stating that he absconded from office since 21^st January, 2019 without giving any reason for his absence; action which constitutes gross misconduct and indiscipline and contrary to the terms of his reinstatement, warning letter and letter of undertaking. The Defendant stated that it is the standard practice that all communications from management even during periods of leave must be attended to. That the staff conditions of service do not preclude a staff from attending to a query within the period a staff is on leave; and the Claimant is aware that a staff on leave ma be recalled from leave. The Defendant stated that the Claimant’s insubordination, rudeness to the management, and disregard for constituted authority, were still displayed when he failed to respond to the query of 22^nd December, 2016 which he was aware of while on leave.

[24] The Defendant averred that while the Claimant was on leave he sent a memo dated 15^th April, 2019 seeking an extension of his leave to travel to Malaysia. The Defendant f stated that the query of 5^th March, 2019 issued by the GH (HRM) and its contents therein is in line with Article 92.2 of the Staff Condition of service, and that the Claimant responded on 25^th March, 2019 long after he was expected to reply to the query. The Defendant averred that the staff conditions of service provides that failure to answer a query within the stipulated time shall be deemed admission of guilt and shall be treated as such. The Defendant stated that the Claimant’s allegation that he was denied access is untrue. The Claimant submitted a letter of resignation of appointment and an Abbey Mortgage Bank cheque in lieu of 3 months’ salary was attached to the letter of resignation dated 24^th July 2019. The Defendant stated that the cheque was a dud cheque which was returned unpaid. The Defendant further stated that the Claimant during the period he absconded was still on its payroll and was paid salaries and entitlements for December 2018, January 2019 and February 2019.

[25] The Defendant stated that the Claimant stopped coming to work sometime in May 2019. The Claimant did not exhaust all internal mechanisms before taking further steps outside the laid down grievance procedure. The defendant further stated that it is a normal practice within the banking sector with person(s) who no longer are in employment of banking institutions for banking institutions to alert and inform the general public that those particular person(s) are no longer in the employment of the institution. The Defendant averred that at the time of the publication the Claimant was no longer its employee and was in no way authorized to carry out any dealings or transaction on behalf of it with the public. That all the words used in the publication are factual and true. The Defendant stated that the Hon. Minister directed the Claimant’s dismissal to be converted to termination without financial implication to the bank, and that he refunds the three (3) months’ salary paid to him by the Defendant for the period of absence from duty as well as several other conditions stated in the letter. The Claimant rejected the terms under which the Honourable Minister directed that his dismissal be converted to termination without financial implication to the bank.

[26] The Defendant stated that the Claimant had a one-year contract with Baze University as Lecturer II for the period of Jan, 2018 – December, 2018 during the period of the termination, and upon reinstatement he was paid the full entitlements for the whole period. That the Claimant kept this a secret and as such is not entitled to salaries and entitlements for the period of 2018. The Defendant stated that the query of 5^th March, 2019 was proper and that the Claimant was sufficiently aware that a disciplinary action had commenced against him contrary to his allegation.

[27] The Defendant’s witness is Katherine (DW) AGM Human Resources. She adopted her statement on oath which was in the exact terms of the pleadings. In cross-examination, DW stated that one of her schedules is to ensure that the conditions of service is complied with; and she confirmed that the Claimant was summarily dismissed in line with the staff conditions of service. DW stated said that the Defendant has no right to reinstate a disengaged employee because it is under a supervising Ministry, Federal Ministry of Housing. DW told the Court that it was the Ministry that reinstated the Claimant and gave the conditions for his reinstatement. That Exhibit D6 is the response by the Claimant and not the conditions by the Ministry. DW told the Court that the condition of service and the Public Service Rules. DW said that she has been part of the sittings at the National Assembly and denied that the Claimant was not gave fair hearing. DW stated that the Claimant had already faced a disciplinary panel and that the terms of his reinstatement did not allow him to appear before the disciplinary committee hearing for the second time. DW told the Court that the Claimant has a subsisting warning. DW told the Court that she was not a signature expert.

Final Address

[28] The Defendant submitted four issues for determination:

a. Whether from the facts and circumstances of this suit, the Claimant blatantly breached the Defendant’s staff conditions of service, terms of his reinstatement and his letter of undertaking, making the Claimant liable to be summarily dismissed from the employment of the Defendant.

b. Whether the defence of fair comment and justification avails the Defendant, in its publication as contained in the Daily Trust Newspaper of 7^th October 2019.

c. Whether the Claimant has failed to prove his entitlement to the reliefs sought, warranting this Honourable Court to dismiss his claim

d. Whether the Defendant/Counter-claimant has proved its counter-claim entitling judgement to be entered as per her reliefs

[29] Learned Counsel objected to the video recordings of the House of Representatives Committee on Public Petition Hearing (Exhibit C15) and the photocopy of the incoming Mail Register dated 7^th January to 18^th March 2019 (Exhibit C38). He submitted that the video recording is a public document by virtue of Section 102 of the Evidence Act, 2011, requiring certification before it can be tendered as evidence in any trial proceeding. Counsel argued that the video recordings are computer-generated evidence that must comply with the strict provisions of Section 84 of the Evidence Act, 2011. That the video recordings form part of a document as defined under Section 258 of the Evidence Act 2011. He submitted that the National Assembly is an official body and the video recordings are documentary records of the official acts of the National Assembly, qualified as public documents under Section 102 of the Evidence Act 2011.

[30] Learned Counsel submitted that only a certified true copy of a public document can be admitted by the Court in accordance with Section 104 of the Evidence Act, citing Omisore & Anor v. Aregbesola & Ors [2015] LPELR-25820(CA). He objected to the admissibility of the photocopy of the Incoming Mail Register dated 7th January to 18th March 2019 (Exhibit C38) on the grounds that it is a public document in accordance with Section 102 of the Evidence Act and it is only the certified true copy of the document that is admissible, citing Danguru v. Unity Bank Plc [2014] LPELR-23987(CA).

[31] Learned counsel submitted that Exhibit D5 forms part of the Claimant’s contract of service and conditions of reinstatement as there is an unequivocal offer by the issuance of the terms of reinstatement and unequivocal acceptance of it by the Claimant by Exhibit D6. He submitted that on the evidence adduced, the Claimant was not entitled to the leave alleged to be accrued as claimed. He submitted that it is evident that the Claimant was persistently absent from his duty post without the requisite authorization and permission, thus making the Claimant liable under Section 89.6 of the Defendant’s Staff Conditions of Service constituting a ground for dismissal. He submitted that the claimant’s summary dismissal is in line with the defendant’s staff conditions of service, terms of reinstatement and letter of undertaking citing Yusuf v. UBN Ltd [1996] LPELR-3537(SC).

[32] Learned Counsel submitted on issue two that the publication made by the Defendant in the Daily Trust Newspaper of 7^th October, 2019 is not libellous as the facts are true, fair and accurate. He submitted that the defence of fair comment and justification avails the Defendant, who is justified in the use of the words contained citing Esenowo v. Ukpong & Anor [1999] LPELR-1166(SC); Sketch Publishing Co. Ltd. v. Ajagbemokeferi [1989] 1 NWLR (Pt.100) 678. That in an action for libel, the Claimant to be able to succeed must prove that the words or statement were spoken or made by the defendants; that such words or statement referred to him; that the words or statement were spoken to or communicated to a third party; that the words were published; that the words or statement were defamatory or libellous of him; that the words or statement were false or untrue and that there was no justifiable legal grounds for the publication of the words or statement, citing Labati v. Badmus [2006] 1 NWLR (Pt.1041) 199, Concord Press Ltd. v. Obijo [1990] 7 NLWR (Pt. 162) 303.

[33] Learned Counsel submitted that the Claimant has failed to establish and prove to the Court the essential ingredients and elements of libel, to warrant the Court to find that the publication made by the Defendant is libellous, citing Guardian Newspapers Ltd & Anor v. Ajeh [2011] LPELR-1343 (SC), Ajileye v. Fakayode [1998] 4 NWLR (Pt. 545) 184. Counsel argued that it settled law that to plead the defence of justification, the defendant must prove that the defamatory words are true in substance and in fact, citing Ekanem v. Akpan & Ors [2018] LPELR-44036(CA). He submitted on issue three that the Claimant has failed to prove its entitlement to the reliefs sought warranting a dismissal. PELR-3504(SC); Beta Glass Plc v. EPACO Holdings Ltd [2010] LPELR-3872 (CA). On issue 4, he submitted that the Defendant has proved the counter claim and is entitled to the reliefs.

[34] The Claimant submitted four issues for determination:

1. Whether the dismissal of the Claimant was wrongful, illegal, in contravention of the Claimants right to fair-hearing and the Defendant’s employees’ conditions of service and is equally malicious?

2. Whether the Publication made by the Defendant on the Daily Trust Newspaper on the 7^th day of October, 2019 was without just basis, libelous, malicious and has caused actual harm to the reputation of the Claimant which harm entitles the claimant to exemplary damages against the defendant?

3. Whether having regards to the facts and circumstances of this case, the Claimant has proved his case and his entitlement to the grant of the reliefs sought in his amended statement of facts.

4. Whether the defendant has failed to prove its entitlement to the counterclaim and the counterclaimed has failed woefully.

[35] Learned Counsel to the Claimant began by submitting that the video recordings will only be treated as electronically generated evidence within the meaning of Section 84 of the Evidence Act and that the conditions set out for their admission in Section 84(2) of the Evidence Act, 2011 has been met by the Claimant because a certificate of compliance is before the court. He submitted that the documents not being public documents are admissible once the conditions set out in Section 84(2) are met, citing Kubor & Anor v. Dickson & Ors [2012] LPELR-9817(SC).

[36] Learned counsel on the photocopy of the incoming mail register, stated that the Claimant gave the Defendant notice to produce the incoming mail register which is in the defendant’s custody but the defendant failed and neglected to produce the said document as requested. Counsel contended that failure of the Defendant to present the original copy of the incoming mail register, the Claimant has been given the leverage by Sections 89 and 91 of the Evidence Act, 2011 to use the secondary copy without any further requirement for certification, citing Nweke v. State [2017] LPELR-42103(SC) P. 8 Paras. B. He objected to Exhibits D29, D11, D15, D37 and submitted that Exhibits D11 and D15 are mutually exclusive/contradictory and both; and contended that the documents ought to be discountenanced by the Court, citing Musa v. State [2019] LPELR- 51298(CA) P. 17-18 Paras. C. He submitted that DW as a staff of the FMBN cannot tender same which will amount to documentary hearsay, citing Adamu v. Lado & Ors [2023] LPELR-61273(CA), P. 18-19 Paras. F.

[37] Learned Counsel submitted on issue one submitted that the Claimant’s employment with is one with statutory flavor which can only be dismissed or terminated by following due statutory guidelines or conditions of service, citing Shuaibu & Ors v. NBC Plc (Coca-Cola) [2020] LPELR-52110(CA), Pp. 50-52 Paras.D; The Governing Board of the Nigerian National Merit Award & Anor v. Ayoola & Ors. [2022] LPELR-57173(CA) P. 38-41 citing Udoh v. Civil Service Commission Akwa Ibom State & Ors [2013] LPELR-21849 (CA) 26. He argued that the dismissal of the Claimant without following the laid down procedures provided by the conditions of service and the Constitution of the Federal Republic of Nigeria is void in its entirety because the defendant can indeed not put something on nothing and expect it to stand, citing UAC v. Macfoy [1961] 3 ALL NLR 1169. He submitted that the query issued to the claimant was illegal and that “absence from duty”, is an offence not known to the defendant’s conditions of service a citing Olowonihi v. EFCC [2021] LPELR-52778(CA) P. 34-39 Paras. D. He submitted

[38] Learned Counsel on issue two submitted that that the publication of the Defendant contained in Exhibit C47 was a departure from the statutory duties of the Defendant. He argued that the defences of justification and fair comment are not available to the Defendant as the publication is malicious. On issue 3, he submitted that on the evidence the Claimant is entitled to an award of damages citing Fast Approach Konstruction Ltd v. GTB & Ors [2021] LPELR-54615(CA) P. 38-39 Para. F, Gari v. Seirafina (Nig) Ltd & Anor [2007] LPELR-8397(CA) (Pp. 17-18 paras. D. PHCN & Anor v. Atlas Projects Ltd [2017] LPELR-43622(CA) Pp. 35-36 Paras. D. He submitted that where the Court makes a finding that the dismissal of the Claimant was wrongful, the consequential order is a reinstatement citing Alhassan v. Abu, Zaria & Ors [2009] lpelr-8138(CA) Pp. 49-50 paras. A-A.

[39] Learned Counsel submitted on issue four that the Defendant has failed to prove its entitlement to its counterclaim, and that the counterclaim has failed. He then urged the Court to grant all the reliefs sought by the Claimant against the Defendant and dismiss the counter claim of the defendant for lacking in merit.

Reply on point of law

[40] Learned counsel submitted that the case Mobil Producing (Nig) Unltd v. Ayeni & Ors [2019] LPELR-47481 is inapplicable. He submitted that the law is trite that the essence of admissibility of documents is relevancy, citing Uttov v. Uttov [2022] LPELR-57729 (CA). He submitted that the final written addresses of counsel at the end of a trial is simply to assist the Court in reaching a just decision but only based on the evidence led and that a final written address cannot take the place of pleadings and evidence, no matter how beautifully argued, citing Efa v. Ita & Anor [2022] LPELR-58665 (CA). Counsel argued that the law is settled that uncontroverted facts are deemed admitted and should be acted upon by the Court, citing Bayelsa State Govt & Anor v. Egemze & Ors [2019] LPELR-49088(CA).

Decision

[41] I have carefully considered the processes filed by the parties, the evidence, submissions by counsel and the authorities cited in the final addresses. The law is settled that in the determination of employment rights, it is the employee who complains that his employment contract has been breached that has the burden to place before the Court the terms and conditions of his employment that provide for his rights and obligations, see Buka Modu Aji v Chad Basin Development Authority & Anor (2015) 3-4 SC (Pt III) 1 at 15, Oforishe v Nigerian Gas Co Ltd (2017) LPELR-42766 (SC), Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630.

[42] The Claimant has placed before the Court his offer of appointment (Exhibit C1), confirmation of appointment (Exhibit C2), staff conditions of service (Exhibit C40), approval for Part time Ph.D (Exhibit C12), termination of appointment (Exhibit C20), Board decision (Exhibit C23), appeal for reinstatement (Exhibit C24), leave approval request (Exhibit C28), leave application (Exhibit C31), reply to leave request (Exhibit C32), compassionate leave request (Exhibit C34), reply (Exhibit C35), application for leave of absence (Exhibit C36), approval for two months leave of absence (Exhibit C37), query dated 5^th May, 2019 (Exhibit C39), claimant’s reply to query (Exhibit C41), application for extension of study leave (Exhibit C43), leave of absence-resignation (Exhibits C44, C45, C46), notice of dismissal (Exhibit C46), Daily Trust Newspaper (Exhibit C49), letter of complaint, (Exhibit C57), Petition to Hon Minister (C58), and other service documents. The Defendant has also placed before the Court similar documents.

[43] I will begin with the preliminary issues bordering on the admissibility of some documents. The first is the Defendant’s objection to the video recordings of the House of Representatives Committee on Public Petition hearing (Exhibit C15), and the photocopy of incoming mail register (Exhibit C38). The Claimant in cross-examination testified that the videos are proceedings of the National Assembly, and that he obtained them from the person recording for the National Assembly. The National Assembly is an official body and the video recordings are documentary records of its official acts. The video recording falls within the definition of document in section 258 of the Evidence Act 2011, and within the definition of public documents in section 102 of the Evidence Act 2011. Section 90 (1) (c) of the Evidence Act 2011 provides that the secondary evidence admissible in respect of a public document is a certified true copy. The video is not certified, and was wrongly admitted in evidence. It is the duty of the court to expunge documents that are wrongly admitted because the fulfilment of statutory provisions for certification cannot be waived, see Nwaogu v Atuma (2013) 11 NWLR (Pt 1364) 117, Impact Solutions Ltd v International Breweries Plc (2018) 16 NWLR (Pt 1645) 377, Northwest Energy (Nig) Ltd v Ibafon Oil Ltd (2015) 16 NWLR (Pt 1484) 1. Consequently, Exhibits C15 is expunged from the records.

[44] The incoming mail register of the Defendant’s Taraba State office is not a public document. The Defendant was given notice to produce the document but failed to do so. Upon the failure of the Defendant to produce the document in its custody, the Claimant is entitled to adduce the secondary evidence by virtue of the provisions of section 89 and 90 (1) of the Evidence Act. The incoming mail register is in admissible form. I so hold.

[45] The Claimant objected to the following documents Exhibits D29, D11, D15, D37 tendered by the Defendant. Exhibit D29 is a letter. The Ministerial Committee Report objected to, is Exhibit D28 and not D29. The Committee report is addressed to the Defendant’s Managing Director, and it is in the Defendant’s custody. It is a certified true copy of a public document and it is admissible. Exhibits D11, D15, and D37 have been pleaded and are relevant to this case. They are the Defendant’s documents, and emanate from its custody. They are duly certified and are admissible.

[46] The claims of the Claimant and the Defendant/Counter Claimant are in the main declaratory. The burden of proof in establishing declaratory reliefs to the satisfaction of the Court is heavy in the sense that such declaratory reliefs are not granted even on admission of the Defendant where the Claimant fails to establish his entitlement to the declaration by his own evidence. In other words, the declaratory reliefs the Claimant, and the Defendant/Counter Claimant seek against the other cannot be made on admission by the Defendant in the main claim, and the Defendant in the counter claim, or in default of pleadings, or evidence. The Claimant in the main claim, and the counter claim, has to succeed on the strength of his/its own case only if the Court is satisfied by evidence, and not on the weakness of the Defendant’s case, see Chief Joshua Alao v Alfa Akano (2005) 11 NWLR (Pt 935) 160; Dumez v Nwakhoba (2008) 18 NWLR (Pt 1119) 361 at 373-374; GE International Operations Nig Ltd v Q Oil & Gas Services Ltd [2016] 10 NWLR (Pt 1520) 304. The Claimant in the main claim, and the counter claim must adduce credible evidence worthy of belief. Evidence does not become credible merely because it is unchallenged, see Akalonu v Omokaro [2003] 8 NWLR (Pt 821) 190, Chabasaya v Anwasi (2010) LPELR-839 (SC).

[47] The issues that arise for determination are as follows:

1. Whether the Defendant acted within its disciplinary powers when it issued the Claimant the query dated 5^th March 2019?

2. Whether the Claimant was an employee of the Defendant on 26^th September 2019 when the letter of dismissal was written?

3. Whether the Publication made by the Defendant in the Daily Trust Newspaper is Defamatory?

4. Whether the Defendant has established the counter claim?

[48] There is no dispute between the parties that the Defendant terminated the Claimant’s appointment by letter dated 8^th May 2017 (Exhibit C20). Following the Claimant’s Petition to the Hon Minister of Power, Works and Housing and the report, findings, and recommendations of the Ministerial Committee, the Defendant was directed to reinstate the Claimant on certain terms to be accepted by the Claimant. The Claimant was issued a letter of reinstatement dated 24^th December 2018 (Exhibit C24 & D5) that stated the conditions of his reinstatement which were that he should be issued a warning letter, give an undertaking to be of good behavior committing to the condition that a repeat offence would result in termination of appointment or summary dismissal, and that all benefits accruing to him during the period of termination will be paid less benefits paid to him at his exit. The Claimant responded on 27^th December 2018 accepting the terms of his reinstatement and gave an undertaking of commitment to the rules and procedures, and loyalty to the Defendant (Exhibit D6). The Claimant was issued a warning letter (Exhibit D8) in compliance with the directives of the Board of Directors. He was directed to immediately report to his last office Taraba State by memo (Exhibit D7) dated 28 December 2018.

[49] The evidence reveals that upon the Claimant’s reinstatement, he applied for leave of minimum 40 to 45 working days on 31^st December 2018 to complete the process of his re-registration and student visa renewal for his PH.D programme in Malaysia (Exhibit C28 & D9). The Defendant refused approval by memo dated 14/01/2019 (Exhibit C32) on the grounds that he is not entitled to year 2018 annual leave, and is not qualified to apply for year 2019 annual leave having just been reinstated on 24^th December 2018 and resumed duty on 31^st December 2018. On 16^th January 2019 the Claimant applied for leave on compassionate ground to enable him attend to his wife and baby recuperating after surgery (Exhibit C34). The Defendant declined approval by memo dated 16^th January 2019 giving the same reasons that he was not yet qualified to apply (Exhibit C35). On 21^st January 2019, the Claimant applied for leave of absence for two months to enable him attend to his sick wife and to travel to Malaysia (Exhibit C36). This was approved by the management and scheduled to commence Friday 1^st March 2019, to end Tuesday 30^th April 2019 (Exhibit C37).

[50] The GH (HRM) of the Defendant received a memo from its State Coordinator in Taraba State dated 27/02/2019 (Exhibit D15) reporting the absence of the Claimant from his duty post since the 21^st January 2019 without approval. Upon this report, the Defendant through its GH (HRM) issued the Claimant a query dated 5^th March 2019 (Exhibit 39 & D17). The Claimant was directed to explain by March 11, 2019 why disciplinary action should not be taken against him. The Claimant failed to respond to the query within the time limit given. His response is dated 25^th March 2019 and was received by the Defendant on 2^nd April 2019 (Exhibit C41). By Paragraph 90.4 of the staff conditions of service (Exhibit C40), “failure to answer a query within the stipulated time shall be deemed an admission of guilt and shall be treated as such.” It is this query the Claimant is seeking a declaration as being illegal, and the Defendant is also seeking a declaration that the Claimant did not secure leave of absence from 21/01/2019 till 20/03/2019.

[51] It is one of the rights of an employer to discipline an erring employee in the interest of the organization. Article 87 of the Staff Conditions of Service (Exhibit C40) states:

The objective of the Disciplinary Rules and Regulations of the FMBN is to ensure efficient management through compliance, by all employees, with the rules and regulations presently in force or that the FMBN may introduce in the future. Any breach of the rules shall constitute enough ground for appropriate disciplinary measure against staff.

[52] The right of the Defendant to discipline its staff and in this instance the Claimant is expressly stated, see NEPA v Olagunju [2005] 3 NWLR (Pt 913) 602. As held in Shell Pet Dev Co (Nig) Ltd v Omu (1998) 9 NWLR (Pt 567) 672, it is a disruption of an employers business to fetter him with an injunction not to discipline his servant. The query issued by the Defendant was in exercise of its disciplinary powers as an employer after the Claimant’s absenteeism from duty, was officially reported by the State Coordinator. There is no provision in the staff conditions of service that precludes the Defendant from commencing disciplinary proceedings by issuance of a query; neither is there any provision that an employee is not to respond, and/or comply with directives given to him by the employer while he is on leave. Consequently, I hold that the query issued the Claimant on 5^th March 2019 was proper and legal. The declaration sought by the Claimant on prayer 1 is refused.

[53] The evidence before the Court reveals that the Claimant was granted approval to proceed on leave of absence from Friday 1^st March 2019, to end Tuesday 30^th April 2019 (Exhibit C37). There was no approval granted the Claimant to be absent from his duty post from 21^st January 2019. This is the reason for the report by the State Coordinator to the Defendant’s Headquarters. Having found that the Claimant was given leave of absence for the period 1^st March 2019, to 30^th April 2019, the declaration the Defendant is seeking for the period 21^st January 2019 till 20^th March 2019 must fail. The reason being that the approval given the Claimant covered the period 1^st March 2019 to 20^th March 2019. I so hold.

[54] The Claimant has complained that his dismissal was illegal and is a nullity as his right to a fair hearing was breached, and the disciplinary procedure was not adhered to. The letter of dismissal is dated 26^th September 2019. The issue to be resolved is whether the Claimant was in the services of the Defendant on 26^th September 2019 when the letter of dismissal was written to him. The Claimant on 15^th April 2019 applied for an extension of his leave of absence for an additional three months May to July 2019 (Exhibit C43). On 8^th May 2019 he wrote the following reminder (Exhibit C44) to the GM (Human Resources) of the Defendant. It is reproduced as follows:

Re: APPROVAL FOR TWO MONTHS LEAVE OF ABSENCE- RESIGNATION OF APPOINTMENT

I refer to my memo with the above caption dated 15^th April 2019.

In accordance with the provision of Section 43 of the Bank’s condition of service, I put down a request humbly seeking management approval to extend my leave of absence for another three months (May to July 2019) to enable me complete a PhD Finance & Banking program that was duly approved by the Bank, but I am yet to receive any feedback thus far.

In view of the urgent need for me to attend to my study and should Management not be disposed to approving my request, please kindly accept my resignation of appointment. This is necessary as I am out all options.

Thank you.

[55] The Defendant on 13th May 2019 declined his request for extension of the leave of absence and stated: “you are therefore expected to have resumed back in office since 2^nd May, 2019” (Exhibit D21). The Claimant in reaction wrote on 24^th July 2019 to the Managing Director of the Defendant (Exhibit C45 & D22) reproduced as follows:

Dear Sir,

RE: APPROVAL FOR TWO MONTHS LEAVE OF ABSENCE – RESIGNATION OF APPOINTMENT

I refer to my memo with the above caption dated 8^th May, 2019.

Since I have not received any official communication from the Bank neither in respect of the 3 months extension of leave of absence (without pay) to enable me attend to my study, nor in respect of the request for management to approve the resignation of my appointment should it not approve the extension of the leave, I therefore wish to believe that management has accepted my resignation.

In view of the foregoing please find enclosed Abbey Mortgage Bank Cheque number 2660 for the sum of one million, one hundred and sixty-four thousand four hundred- and fifty-one-naira seventy-four kobo only (N1, 164,451.74) being the three months’ notice in lieu as required by the Bank’s staff condition of service.

Your sincerely

[56] The position of the law is that a notice of resignation takes effect not from the date of the letter or from the date of any acceptance, but from the date on which the letter was received by the employer. In WAEC v Oshionebo [2006] 12 NWLR (PT 994) 258 the court held that a notice of resignation is effective not from the date of the letter, or from the date of 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 the employee paying any of his indebtedness to his employer. In other words, once a notice and/or letter of resignation is tendered by an employee, the employer has no option but to accept it. There is an absolute power inherent in an employee to resign from his employment, and it is unnecessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted, see Yesufu v Gov Edo State [2001] 13 NWLR (Pt 731) 517 SC, Taduggoronno v Gotom (2002) 4 NWLR (Pt 757) 453 CA.

[57] The Claimants letter (Exhibit C44 & D20) to the GM (Human Resources) was received on 9^th May 2019; and he stated: “in view of the urgent need for me to attend to my study and should Management not be disposed to approving my request, please kindly accept my resignation of appointment” (underlining mine). The fact of the matter is that resignation is not amenable or subject to rejection. See Adefemi v Abegunde [2004] 15 NWLR (Pt 895) 1 (CA), Benson v Onitiri [1960] NSCC 52 at 63. By this statement the Claimant gave notice of his resignation from the services of the Defendant. I find that the Claimant terminated his employment contract with the Defendant voluntarily, of his own free will on 9^th May 2019 when the Defendant received the notice. The Defendant declined approval of the leave extension, and refused to accept the notice of resignation when it stated that the Claimant is “expected to have resumed back in office since 2^nd May, 2019”.

[58] The Defendant as earlier stated has no option but to accept the Claimant’s resignation. The Claimant decided he no longer wanted to be an employee of the Defendant with effect from 9^th May 2019 when his notice of resignation was received. I hold that the Claimant’s resignation became effective from 9^th May 2019, and he ceased to be an employee of the Defendant. See Daniel Oguntoye v Twice As Nice Clothings & Accessories Ltd (unreported) Suit No: NICN/ LA/472/2016 judgment delivered on May 23, 2019; Ogunlowo Olorunnibe-Charles v Ventures And Trusts Ltd (unreported) Suit No: NICN/LA/451/2016 judgment delivered on May 19, 2021. The question that arises is whether the Claimant complied with the terms of his employment contract by giving the required three month’s notice or payment in lieu of notice?

[59] Where the employment contract gives a party the right of termination by either a particular length of notice or payment of salary in lieu of the length of notice and the latter option is chosen as in this instance, the party seeking to end the contract must pay the salary in lieu of notice at the time of termination of contract, see NNPC v Idoniboye –Obu (1996) 1 NWLR (Pt 427) 655 CA, Chukwumah v Shell Petroleum Development Co. Ltd (1993) 4 NWLR (Pt 289) 512; (1993) LPELR-864 (SC). The law is trite that parties are bound by the terms and conditions of their employment agreement, and the Court must respect the sanctity of the contract, see D.A. Alep (Nig) Ltd v. Oluwadare [2007] 7 NWLR (Pt. 1033) 336. Paragraph 90.24 of the Defendant’s Staff Conditions of Service requires that the Claimant as a confirmed senior staff of the Defendant, choosing to determine his contract of employment by resignation shall give three month notice to the Defendant or pay a compensation equal to the pay for the period of notice in lieu thereof as required under Section 90.26 of the conditions of service.

[59] The Claimant did not pay three months basic salary in lieu of notice at the time he terminated the employment contract. He thereafter on 24^th July 2019 forwarded to the Defendant Abbey Mortgage Bank Cheque for the sum of N1,164,451.74 being three (3) months salary in lieu of notice in accordance with his contract of service. The Defendant presented the cheque at its bank, and it was returned unpaid. It is the Claimant’s evidence that he stopped the cheque because the defendant did not accept his resignation, while the Defendant asserts that it was dud cheque. The point here is that the Claimant breached the terms of the employment contract when he failed to give the Defendant the required three months notice, or payment in lieu of notice as stipulated in his employment contract. This I find to be an irregular resignation. By Paragraph 90.27 of the staff terms and conditions of service, “any irregular resignation shall be considered a termination of employment by the FMBN and shall attract no terminal compensation except as is expressly provided for in the Pension Reform Act.” The Claimant’s resignation being irregular attracts no terminal compensation. I so hold.

[60] The Claimant having effectively resigned his employment with the Defendant on 9^th May 2019, he was no longer its employee and therefore not subject to any disciplinary proceedings thereafter. The Defendant who no longer had any authority or control over the Claimant could not issue a letter of dismissal on 26^th September 2019 in respect of an employment that had ceased to exist. The decision of the Defendant to write a letter dismissing the Claimant after his resignation was therefore a futile exercise, see Jombo v P.E.F.M.B [2005] 14 NWLR (Pt 945) 443 at 461. Likewise the actions of the Claimant in writing an appeal to the Hon Minister of Works and Housing for his intervention (Exhibit C56), the report and recommendations Ministerial Committee (Exhibit D28 and D29) in respect of the said dismissal. They were all exercises in futility, as you cannot put something on nothing, see UAC v Mcfoy [1962] AC 152. There was no employment relationship between the Claimant and the Defendant on 26^th September 2019 to warrant the issuance of the letter of dismissal. I so hold. Consequently, the letter of dismissal is of no effect, and is set aside. The declarations sought by the Claimant in reliefs (ii), (iii), (iv), & (vii) fail. They are refused. The declaration sought by the Defendant/Counter Claimant in relief (b) also fails and is refused.

[61] The Defendant/Counter Claimant is seeking declarations in reliefs (c) and (d) that it is entitled to a refund of the entire 2018 salaries and entitlements paid to the Claimant during the period he was working with Baze University; and the Claimant’s salaries for the months of December 2018, January and February 2019. The Claimant’s employment was terminated on 8^th May 2017 (Exhibit C20) and he was offered a contract employment for one year with effect from January 2018 by Baze University Abuja (Exhibit D33) after his disengagement. The Claimant had a duty to secure for himself another employment after the Defendant terminated his employment. The Defendant reinstated him on 28^th December 2018. The Defendant/Counter Claimant has not established to the satisfaction of the Court its entitlement to the declarations. They are refused.

[62] The Claimant has complained that the Publication made by the Defendant with his picture in the Daily Trust Newspaper of 7^th October 2019 (Exhibit C47) is defamatory, malicious and is injurious to his image and relationship with the public. The entire dispute between the parties is an employment dispute arising from the workplace. The Claimant’s complaint is also on an alleged workplace defamation which is a matter incidental and connected therewith, falling squarely within the purview of section 254C (1) (a) of the 1999 Constitution. The offending publication is reproduced as follows:

FEDERAL MORTGAGE BANK OF NIGERIA

PLOT 266 CADASTRAL, CENTRAL BUSINESS DISTRICT, PMB, 2273, GARKI, ABUJA

DISCLAIMER

This is to inform the General Public that MR. Murtala Aliyu Ibrahim whose picture appears above is no longer a staff of the Federal Mortgage Bank of Nigeria (FMBN).

The public is hereby advised NOT TO ENGAGE IN ANY TRANSACTION with him on behalf of the Bank.

Anyone who engages in any Federal Mortgage Bank of Nigeria related business with him does so at his/her own risk.

Signed Management

[63] The Court of Appeal, in Chinwuba & Ors v Morah (2016) LPELR-41048 (CA) per Oredola JCA, defined libel as follows:

a method of defamation, expressed by print, writing, picture or signs; any publication that is injurious to the reputation of another, a false and unprivileged publication in writing of a defamatory material; a malicious written or printed publication which tends to blacken a person’s reputation or to expose him to public hatred or ridicule, contempt or to injure him in his business or profession.

It is settled law that the essential ingredients of libel are: (i) the libelous words must be in a permanent form, a statement; (ii) the words or statement convey defamatory meaning; (iii) it must refer to the Claimant; (iv) it lowered the Claimant in the estimation of right thinking members of the society, or it exposed the Claimant to hatred, ridicule or contempt; (v) it injured the Claimant’s reputation in his office, trade, or profession, or injured his financial credit; (vi) the publication must be by the Defendant; (vii) the publication must be false. See Otop v Ekong (2006) 9 NWLR (Pt 986) 533 CA, Guardian Newspaper Ltd v Revd Pastor C. I Ajeh (2011) 4 SCNJ, 152 at 163-164. Defamation deals with the factual situation at the point of publication of the said libelous material.

[64] In this instance, the Defendant published the offending words in the Daily Trust Newspaper. The question is whether under the circumstances in which the words complained of were published the reasonable man is likely to understand the Defendant’s disclaimer in a libelous sense? And whether the Claimant has proved that the words are false. It is already established that on the day of the publication October 7, 2019 the Claimant was no longer in the services of the Defendant. The words: “This is to inform the General Public that Mr. Murtala Aliyu Ibrahim whose picture appears above is no longer a staff of the Federal Mortgage Bank of Nigeria (FMBN)” is not false. The Defendant is a banking institution with a duty to protect its interest; and the public to whom the publication was made has a corresponding interest to receive it. It is a privileged occasion publication, see Otop v Ekong supra.

[65] Even if a statement appears to be derogatory or injurious to a person as to impeach his character or reputation, it may still not amount to defamation unless the party complaining proves that it was a false statement. The dictum of Katsina-Alu JCA (as he then was) in Onyejike v Anyasor (1992) 1 NWLR (Pt 218) 437 at 449-450 is reproduced:

A man is entitled to his good name and to be called what he is. But if in a man’s life he happens to have a blur and that blur is with the sanction of the law recognised as such, it is no libel to point it out even if it is done for mischief. That a man is entitled to the estimation he stands in the opinion of others is qualified only if what is said of him is false and thus lowers that estimation. But to say what is true, even if not obvious- will not be defamatory.

[66] The Claimant failed to prove that the statement made in the publication was false. The Claimant testified that he is currently the Financial Controller of Shafa Oil. The disclaimer therefore did not hinder the Claimant from securing employment. I hold that the Claimant has not been defamed and/or libeled by the publication. The defences of justification and fair comment avail the Defendant. The declarations sought by the Claimant in reliefs (v) and (vi) fail and they are refused. I re-state that the Claimant effectively resigned from the services of the Defendant on 9^th May 2019.

[67] On the whole, the Claimant and Defendant/Counter Claimant failed to prove their entitlement to the declarations they are seeking. All the declarations sought in the main claim and the counter claim must therefore fail. They are all refused. The declarations having failed, all the ancillary orders sought in the main claim and the counter claim must also fail having no foundation, see Olayemi v. FHA (2023) 3 NWLR (Pt. 1872) 445 at500, Para E (SC); Ogoke v. Nduka (2020) 4 NWLR (Pt. 1715) 509 at 529, Paras A-G (CA); Sunko (Nig) Ltd v. Skye Bank Plc (2017)12 NWLR (Pt. 1579) 237 at 270, Paras F-H (CA); Nwaogu v Atuma (2013)11 NWLR (Pt. 1364)117 at 156, Para D (SC).

[68] For all the reasons given above, the Claimant’s case is dismissed; and the Defendant’s counter claim is also dismissed. Each party is to bear its own costs.

Judgment is entered accordingly.

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Hon Justice O. A. Obaseki-Osaghae