IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON.JUSTICE A.N UBAKA

 

 

DATED 29TH SEPTEMBER, 2023                             SUIT NO: NICN/LA/152/2020

 

MR. OSEKHOMO GODWIN                                             - CLAIMANT

 

AND

 

ORIFLAME COSMETICS NIGERIA LIMITED           - DEFENDANT

 

REPRESENTATION:

Kayode Omosehin with P.S Edime for the claimant

M.O. Emmanuel with George Ayanjompe the Defendant.

 

   

                                                  JUDGMENT

The Claimant by a General form of Complaint dated 17th June, 2020 but filed on the 24th of June, 2020 claims against the Defendant as follows:

 

1.     A DECLARATION that the Claimant was constructively dismissed by the Defendant without justifiable ground when the Defendant's officers forced the Claimant to resign on 24th January 2020 and that the Claimant's purported resignation of 24th January 2020 was involuntary and unlawful;

 

2.     DECLARATION that the decision of the Defendant in singling out the Claimant for dismissal without fair hearing amount to discrimination and unfair labour practice and therefore unlawful.

 

3.     AWARD OF DAMAGES in the sum of N2,000, 000.00(Two Million Naira) against the Defendant payable within 7 days as damages for unlawful dismissal and unfair labour practice;

 

4.     AN AWARD of Nl,000,000 (One Million Naira) as cost of filing the action as a result of the Defendant's deliberate refusal to settle the dispute amicably thus forcing the Claimant to resort to Litigation.

 

Accompanying the complaint is the claimant’s written statement on oath, list of witnesses and documents to be relied upon on trial dated 17th June, 2020 but filed 24th June, 2020.

 

In reaction, the defendant entered formal appearance and then filed a statement of defence, witness written statement on oath (20th July, 2022) and list of documents to be relied upon at trial dated 14th July, 2020 but filed on 16th July, 2020.

 

The summary of the facts pleaded by the claimant is that he was employed by the Defendant on 1st July, 2018 as a Warehouse Officer and that following his devotion and outstanding performance as confirmed by his record, the Defendant gave him several salary increments; that the entire premises of the Defendant including the warehouse where he was stationed was covered by CCTV cameras; that though  the Defendant imposed resignation on him on the 24th of January 2020,  it was tantamount to dismissal as he was  forced  to sign a document the content of which he was not given opportunity to read or seek legal advice about. That his performance in the Defendant's employment was commendable and his conduct was unblemished as confirmed by his rapid increase in salary and that he has never been queried nor charged with any misconduct having discharged his duties to the Defendant diligently without any question.

 

That on 24th January 2020, the trio of the Operations Manager (Mr. Abiri Oluwaseyi), the Supervisor (Mr. Oyetoro Oyeleye) and a Security Officer (Mr. Peter Oko) of the Defendant called him into the Defendant's conference room where they presented two letters to him the contents of which he was not given the chance to read or seek legal advice about; that the Defendant's officers explained to him that one of the letters was to dismiss him with immediate effect and without any benefit of one (1) month's salary in lieu of notice; while the other letter was purportedly for his resignation, which would entitle him to payment of  one (1) month's salary in lieu of notice; that he protested against the decision to terminate his employment without any reason having insisted that failure to sign the resignation letter would lead to his dismissal. That the Defendant's officers took away the letter which he signed without providing him with a photocopy thereof. The entire session between him and the Defendant's officers was captured by the Defendant's CCTV camera.

 

That the Defendant engaged in discriminatory and unfair labour practice against him by failing to provide his monthly salary pay slips, by making wrongful deductions from his salaries and singling him out for dismissal without fair hearing over a conduct of all 19 staff members including the company's drivers and forklift operators; that the Defendant’s conduct violates the International Labour Convention on
Termination of Employment Convention, 1982 (No. 158); that the Defendant failed and refused to provide his monthly Pay Slips showing the breakdown of his salaries and the monthly deductions from his salaries despite demand, prevented him from ascertaining the exact amount he was earning as salaries and the amount due as pension contributions as well as the deductions being made by the Defendant from his salaries; that the Defendant introduced a mortgage scheme to the workers and addressed the warehouse workers on it and that by virtue of the scheme, the Defendant was making monthly deductions from his salaries and that he has not derived any benefit from the mortgage scheme. That the Defendant promotes the culture of fear and intimidation in the company
amongst warehouse staff which prevented him from insisting on his rights.

 

That the Defendant's officers mentioned (while asking me to resign) that he must exit the company for participating in a social hangout of about 19 staff members at the Warehouse on Christmas Eve 24th December 2019 ("Staff Hangout") being the last working day of the year; that the staff hangout of 24th December 2019 happened after work hours as the day was a half-working day. The Staff Hangout took place at the Warehouse which is at the back of the Defendant's premises but within the coverage of the Defendant's CCTV camera wherein Staff members had few drinks at the Hangout to mark the end of the year 2019 but that he did not drink and that the Hangout was never a misconduct and did not impact on his performance or image of the Defendant. That the Defendant engaged in discriminatory practice in when it singled him out for termination together with his closest friends and colleagues, Aziba Cosmas and Oniyelu Temitope Amos without fair hearing.

 

That on 13th March 2020, he instructed his Solicitors, Koriat & Co to write and a letter of demand, which was written on his behalf to the Defendant to demand amicable settlement of the dispute and that by the said demand letter, he informed the Defendant the matter would be deemed amicably resolved if the Defendant provided an opportunity to voluntarily resign, a good reference letter and compensation for loss of employment. That two emails of 24th March 2020 and 27th May 2020, his Solicitors wrote to forward the acknowledgment copy of the demand letter of 13th March 2020 to the directors of the Defendant urging them to respond to his demands but the Defendant and its directors willfully ignored his request for amicable resolution of the dispute, hence the present suit.

 

Under cross examination by the defendant’s counsel, CW stated that he did not resign to avoid dismissal; that he did not drink as he left immediately after closing; that he was not given the defendant’s staff handbook; that he does not have any document showing that he queried the defendant on the deductions of his salary.

 

There was no Re-Examination by the claimant’s counsel. The claimant thereafter closed his case.

 

The defendant opened its defence by calling its sole witness, Mr. Oluwaseyi Ologun, a Warehouse/Logistics Officer of the defendant wherein he adopted his witness statement on oath as evidence in this case. The defendant’s witness statement on oath is that he relates closely with the Claimant and his former supervisor, Mr. Oyeleye Oyetoro, who used to work at the Defendant's warehouse; that he is aware that his former colleague, Oyeleye Oyetoro has initially deposed to a witness statement on oath in support of the Defendant's case in this lawsuit but he has since resigned from the employment of the Defendant and that due to his resignation, it is extremely difficult, if not impossible, to secure his attendance in the Honourable Court to testify in support of the case of the Defendant.

 

That the Defendant places great premium on a high ethical and disciplined culture, which is modeled and practiced at every level of authority; in every sphere of its operations and in every country where it operates. that the Defendant promotes and seeks to achieve in every sphere of its operations and in every jurisdiction where it operates: attractive benefits and compensation plan for all its employees, keeping with industry standards in the sectors where it operates.

 

That he is aware that the Defendant's policy on attractive benefits and progressive compensation plan for its employees which was fully extended to the Claimant and the Claimant's activities and responsibilities in the course of his employment with the Defendant were duly accounted for and rewarded either through official recognition and commendation or through increments of the Claimant's annual salary and payment of bonuses; that the Defendant installed Closed Circuit Television (CCTV) in certain areas within its premises in order to protect its personnel, equipment and assets from any likely security breaches; that this lawsuit was not brought in good faith, as the Claimant has only maliciously sued the Defendant for the purposes of gold-digging and intimidation.

 

That he is aware that the Claimant was employed by the Defendant on 17 September 2014 as a Warehouse Officer after he successfully completed the Defendant's recruitment process and by virtue of the Claimant's employment contract, he subscribed to the Defendant's Code of Conduct, Rules and Regulations, Staff Handbook and covenanted to use his best endeavors to promote, protect, develop and extend the business of the Defendant; that the Claimant was neither dismissed from employment nor forced to append his signature to any document, as the Claimant voluntarily resigned from the Defendant's employment after he had admitted to the misconduct of drinking alcohol during office hours and being found in a state of drunkenness during office hours; that on 24 December 2019, Mr. Oyetoro caused a formal complaint to be made to the Board of Directors against the Claimant when he found the Claimant in a drunken state while on duty and after the Claimant had been given the opportunity to respond to the allegation, the Board of Directors made a decision to present the Claimant with two options, namely: either to voluntarily resign from his employment or in the event of his refusal to resign, he would be dismissed for being drunk during office hours.

 

That when the Claimant was confronted with the allegation of his drunkenness on duty, he did not deny this allegation, as he was not able to provide any satisfactory explanation as to why he decided to engage in drinking alcohol with some of his colleagues within the office premises during official hours and that the Defendant therefore scheduled a meeting with the Claimant on 24 January 2020 where he was presented with the option to either voluntarily resign from his employment or stand the risk of being dismissed for engaging in the consumption of alcohol during official hours and being drunk during official hours.

 

That upon being presented with the two options stated above, the Claimant voluntarily chose the option of resigning from his employment with immediate effect and is therefore estopped from complaining about his termination when he has agreed that the Defendant reserves the right to terminate his appointment without pay if he is guilty of any fraud or dishonesty or act in any manner which in the opinion of the Defendant or its Board brings or likely to bring the Defendant or its other employees into disrepute or is materially adverse to the interests of the Defendant; that he knows as a fact that consuming alcohol on duty is an act, which in the opinion of the Defendant's Board of Directors, is capable of bringing the Defendant or its employees into disrepute and capable of setting a bad example for other employees of the Defendant. That he is also aware that the upward review of the Claimant's salary and payment of bonuses were done as a matter of general practice, as the Defendant regularly reviews its employees' remuneration packages in line with international best practices and also in order to encourage them to be more productive and motivated to achieve the Defendant's set targets.

 

That according to the report made by Oyeleye Oyetoro to the Board which he verily believes to be true, on 24 December 2019, the Claimant, with two (2) of his friends, hosted a social gathering at the Warehouse of the Defendant, within the office premises. The said social gathering was not authorized by the Defendant and it was done during official hours when the Claimant and his friends were expected to be at work. The Defendant had already organized an end of the year party for all its staff on 6 and 7 December 2019 where all the members of its staff were lodged at a resort for two days and had fun; that at the social gathering which was held between the hours of 10:00am and 11:00am, the Claimant and his friends consumed alcoholic drinks and littered the floor with cans of beers with the brand names: "Trophy larger beer", and "Goldberg larger beer".

 

That Mr. Oyetoro stated that he took the picture with his phone camera and sent it to his official email and from there he escalated it to his superior in the office and he also retrieved a copy of the email which he printed from his HP Computer Laptop and the office printer which he has been using for work-related functions for the past two years and which have never developed any fault or malfunctioned; that Mr. Oyetoro confronted the Claimant in his state of drunkenness, but he was not able to provide a reasonable explanation, as he was rude and arrogant to his supervisor and he also stated that he had a right to consume alcohol; that the Claimant's contract of employment provides for a mechanism through which the Claimant could formally complain about any decision that was taken against him by the Defendant, but the Claimant failed to employ this complaint procedure.

 

That he is aware that none of the Defendant's representatives mounted any form of pressure on the Claimant to append his signature on any document or to take any particular course of action, as the Claimant is a fully grown man who knows his rights under the law and is literate; that he is aware that there is no CCTV recording of the Defendant's representatives mounting pressure on the Claimant to take any course of action or append his signature on a letter of resignation; that the Defendant has, at all times material to the facts of the lawsuit, dealt fairly with the Claimant including prompt payment of the Claimant's salaries and other entitlements and periodic increment in his salary to motivate the Claimant to work and also the claimant having admitted the Defendant's fair dealings in paragraph 5 of his Statement of Facts where the Claimant averred that "the Defendant gave him several salary increments." is therefore, estopped from denying the Defendant's compliance with international best practices because:

 

 

1.     The Claimant is aware of his salary and when his salary was increased, the Defendant's letter conveying the reviewed salary was communicated to the Claimant.

 

2.     At no time prior to the filing of this lawsuit did the Claimant demand to know from the Defendant the breakdown of his gross salary.

 

3.     The Claimant has not substantiated any claim on the Defendant's alleged failure to comply with international best practice.

 

4.     The Claimant has not provided any fact to substantiate the alleged deduction of his monthly salary on any mortgage scheme as this was not part of the Claimant's terms of employment and he has never demanded from the Defendant at any time prior to the institution of this suit any reason for any alleged deduction on mortgage scheme.

 

5.     There is no culture of fear and intimidation in the Defendant as this baseless allegation cannot be substantiated.

 

6.     Supervisor met only the Claimant and two (2) of his friends consuming alcohol sometime between 10am to 11 am on 24 December 2019 and when he confronted them for drinking during office hours, the Claimant was rude to him and stated that he and his friends had the right to consume alcohol and celebrate.

 

7.     The three (3) employees (including the Claimant herein) who were found consuming alcohol on 24 December 2019 all chose the option to voluntarily resign from their employment so there was no form of discrimination against the Claimant, as the Defendant cannot discipline other employees who were not found consuming alcohol or in a state of drunkenness during official hours.

 

8.     The Claimant's allegation that he was not given his monthly pay slips is an afterthought and an attempt by the Claimant to clutch onto straws since he is aware that his claim before this Honourable Court is specious.

 

That although when the Defendant received the Claimant's Counsel's letter, it considered it as a ploy to intimidate and blackmail it to provide a good recommendation letter for the Claimant who admitted to consuming alcohol during office hours, the Defendant was nevertheless unable to instruct its solicitors to respond to the letter due to the disruption in its activities by the COVID-19 Pandemic and also that the Defendant considered the Claimant's Counsel's letter as extortionary as the claimant was demanding a ransome of N1,000,000.00 (One Million Naira)  against a threat of a possible of lawsuit notwithstanding that it was the Claimant who willfully breached his contract of employment with the Defendant by engaging in consumption of alcoholic drinks while at work.

 

Under cross examination by the claimant’s counsel, DW said that the board of Directors were aware of the meeting of the claimant on 24th January, 2020; that it is not true that Mr. Oyetoro Oyeleye was disengaged because of the meeting; that the warehouse’s CCTV was not functioning at that time.

 

There was no re-examination by the defendant’s counsel. The defendant thereafter its case.

 

The parties were directed to file their final written addresses. The defendant’s final written address is dated 2nd June, 2023 but filed 6th June, 2023 while the claimant’s final written address is dated and filed 4th July, 2023. The defendant’s reply on point of law is dated 12th July, 2023 but filed 14th July, 2023.

 

Learned counsel on behalf of the defendant formulated three (3) issues for the court’s determination viz:

 

1.     When a witness makes material inconsistent statements, their
evidence will
be discarded as unreliable testimony. Can this
Honourable Court rely
on the testimony of the Claimant in view of
his monumental inconsistent statements?

 

2.     Assuming without conceding that the Claimant is a truthful and reliable witness, has he been able to establish his entitlements to any of the claims he is making?

 

3.     Is the Defendant justified in terminating the Claimant's employment when the Claimant was drunk at work?

 

It is the defendant’s counsel submission on issue one (1) that the consequence of impeachment of the credibility of the Claimant is that his evidence loses probative value and the facts lay unproven; that the material contradictions in his statement that he left for home immediately after working hours and did not participate in the hangout against his statement; that the hangout was not a misconduct and that it did not impact his performance have destroyed whatever is left of his integrity; that the claimant wants the honourable court to believe that he did not participate in the hangout, but he was able to mention the names of those who participated at the hangout; alleged that the Defendant singled him out for punishment out of the 19 members of staff that participated at the hangout. He later confirmed his lack of integrity when he changed his testimony to say that he did not consume alcohol but the other participants at the hangout had few drinks; that one wonders which version of his testimony the Claimant wants the honourable court to believe. He cited the case of Doripolo v State (2012) LPELR-15415 (CA) and urged the honourable court to discountenance the claimant’s testimony as an untruthful witness and consequently dismiss his claim in view of Sections 131 and 132 of Evidence Act, 2011.

 

On issue two (2); the defendant’s counsel contended that a case of wrongful dismissal does not entitle the employee to damages at large except in very exceptional cases, which the Claimant has failed to demonstrate here; that where the Claimant succeeds in a case of wrongful dismissal the honourable court would compensate him with payment of salary in lieu of notice, as the only right vested in the parties would be to terminate with payment in lieu of notice; that in the very unlikely event that the honourable court agrees with the Claimant that there could be a finding of wrongful termination, the Defendant has already regularized its position having paid the Claimant his one-month salary in lieu of notice as the Claimant is not entitled to (a gold-digging claim of N2,000,000.00 (Two million naira).

 

Continuing, counsel submitted that the law is steel-solid that where an
employer presents an employee who misconducted himself in the servic
e of his employer with the choice to resign honourably rather than being sacked and the employee voluntarily elects to resign his employment, presenting the employee with such options would not amount to coercion if the employee willfully and voluntarily took the option of resignation. He cited the case of Union Bank of Nigeria v Nwachukwu (2000) LPELR-12976 (CA) and urged the honourable court to so hold.

 

On issue three (3); counsel submitted that by the totality of the Defendant's uncontroverted evidence especially Exhibits OG7 and OG10, it is within the Defendant's right to terminate the Claimant's employment when the Claimant is found wanting in his official duties or when he misconducts himself; that the Defendant has been magnanimous in going the extra mile of advising the Claimant to resign when he was drunk at work with the consequence of paying him one month salary in lieu of notice when the Defendant could have dismissed him from work without pay.

 

Learned counsel on behalf of the claimant framed a sole issue for the court’s determination viz:

 

Whether from the totality of facts, pleadings, and evidence
adduced, the Claimant is entitled to the reliefs sought.

 

It is the claimant’s counsel contention on the sole issue and in relation with the claimant’s resignation of 24th January, 2020 that the Defendant's action of presenting an already prepared resignation letter to the Claimant on 24th January 2020 in the presence of its security officer over an unsubstantiated allegation of drunkenness and forcing or coercing the Claimant to insert his name, date and signature in dotted lines provided in the resignation letter is unlawful and constructive dismissal of the Claimant. He cited the case of Onuminva v. Access Bank PIc [20141 LPELR-22461 (CA) and urged the honourable court to so hold.

 

Continuing, counsel submitted that the presence of a security officer (Mr. Peter Oko) was
a
rranged by the Defendant to intimidate the Claimant into resignation or to
escort him out of the premises if he refused to resign; that the Claimant has led credible evidence to prove his forced resignation which amounts to constructive dismissal and that the Claimant was constructively dismissed in the present suit. He cited the case of Western Excavating v. Sharp (1978) 1 All ER 713.

 

That the claimant's acceptance to sign the already prepared
resignation letter under a tense atmosphere (in the absence of disciplinary
process for misconduct) was to treat the employment contract as
repudiated as a result of the Defendant's breach of fair hear
ing over the
allegation of drunkenness
, which amounts to constructive dismissal.

On the defendant’s lack of evidence of drunkenness against the claimant; the claimant’s counsel submitted that since the ground for coercing the Claimant to sign a prepared resignation was the allegation of drunkenness, the Defendant must prove the misconduct of drunkenness before the honourable court; that as the honourable court's record shows, there is no CCTV recording of the Claimant's participation in the hangout despite the claimant’s notice to produce same. There is no photograph nor video record showing the Claimant in a drunken state, no proof of issuance of a query or formal complaint against the Claimant or any admission of misconduct. There is no record of any disciplinary process or proceedings against the Claimant.

 

That the photograph presented in evidence by the Defendant and
admitted by court as Exhibit OG9)
, Mr.       Oyeleye Oyetoro, purportedly took at the hangout of 24th December 2019 is lacking
in any probat
ive value as the said photographs do not show the date they
were taken nor any connection to the Claimant as a participant of the
alleged hangout or in any drunken state as alleged by the Defendant
;
that assuming without conceding that the Defendant's allegation of the
Claimant
's drunkenness was true, Mr. Oyeleye Oyetoro,
who purportedly took the photographs (Exhibit OG9) ought to have
captured the Claimant in a drunken state unless he (the maker of the
photographs) was himself drunk when he took the picture. That the testimony of DW is speculative, contradictory and inconsistent. He cited the case of
Osifo v. STATE (2021) LPELR-54136(CA) and urged the honourable court to discountenance Exhibit OG9 and hold that the allegation of drunkenness against the Claimant was not proved.

 

On the unlawful deductions of the claimant’s salary; the claimant’s counsel submitted that apart from being an admission of the Defendant's unilateral
deductions of the Claimant's salaries, Exhibit OG6 is suspicious having been hurriedly concocted by the Defendant to defend itself against the claim of unfair labour practice relating to unilateral deductions of the Claimant's salaries; that the Defendant made the unilateral deductions without the Claimant's consent and shrouded the amounts of deductions in secrecy by refusing to provide pays lips or any proof of the deductions until this case was filed. He cited the case of Omole v Mainstreet Bank Microfinance Bank Ltd. (2015) 53 N.L.L.R. (Pt. 180) 491 at 521 and urged the honourable court to so hold.

 

On breach of fair hearing; counsel submitted that it is trite law that an employer who dismisses or disengages an employee for misconduct must prove that the employee was given adequate opportunity to defend the misconduct; that the defendant in the instant suit

did not issue a query or hold any disciplinary proceedings over the allegation against the Claimant before forcing him to sign a prepared resignation letter. Also, both parties agree to the fact that the meeting of 24th January 2020 was held solely to present the Claimant with two options: either to insert his name, signature and date on a resignation letter (prepared and presented by the Defendant) or be dismissed from the Defendant's service. That the Claimant was not allowed to defend himself before the
Defendant presented him with a prepared letter of resig
nation to sign failing
which he would have been dismissed. He cited the case of Awulu v Polaris Bank Ltd (2022) LPELR-58783(CA)
and urged the honourable court to so hold.

 

On the claim for damages and cost of action; counsel submitted that the award of damages and cost of action is at the discretion of the honourable court and the honourable court, being a court of law and equity, is enjoined to ensure adequate compensation for a claimant who has been unjustly treated by the defendant.

 

On the Reply on point of law; the defendant’s counsel submitted that in the circumstance of the Claimant's admission that the hangout took place and that he participated, the Defendant only requires minimum corroborating evidence to charge the Claimant with liability. He cited the case of Cappa & D' Alberto Ltd v. Akintilo (2003) LPELR-829(SC). That the Defendant has discharged this burden of minimal proof when it put in Exhibit OG9 which shows the picture of the brand of alcohol consumed at the hangout; that it should also be pointed out that this is a civil proceeding and the standard of proof is not beyond reasonable doubt but on the balance of probability. He urged the honourable to dismiss the Claimant's lawsuit in its entirety as there is no legal basis to sustain the Claimant's arguments in his Final Address.

 

I have carefully considered all the processes filed, the evidence led, the written submissions, arguments and authorities canvassed by counsel in the final written addresses in this matter.  The issue for determination is

 

Whether the claimant is entitled to the reliefs claimed

 

Before delving into the main case, it is necessary to first look into the preliminary point raised by the defendant that this lawsuit discloses no reasonable cause of action. The claimant did not respond to same as he did not file a reply to the statement of defence. It is settled law that in determining whether there is a reasonable cause of action or not, reference must be made to the statement of claim. A reasonable cause of action means a cause of action with some reasonable prospects of success when the allegations in the statement of claim discloses cause of action or some questions deserving of consideration and determination by the judge, such an action shall be held to disclose reasonable cause of action. The claimant has alleged that he was constructively dismissed in his statement of facts. it is not whether the case will succeed or not but that from the averments the claimant has alleged that a right has been violated and it is that right that provides the right to sue which is the wrongful act of the party sued see Emechebe v Ceto International Nig Ltd (2017) LPELR – 45365. I hold that there is a reasonable cause of action. 

 

The case of the claimant is that he was employed as a warehouse officer on the 1st of July 2018 by the defendant and was dismissed on the 24th of January 2020 wherein he was presented with two letters, one letter for resignation and the other dismissal. He then signed the one for resignation as an option given to him by the defendant as that would entitle him to one month salary in lieu of notice, this again signalled the end of his working relationship with the defendant wit. Now the argument of the claimant is that having to force him to resign is constructive dismissal without justifiable ground as there was no fair hearing and prayed for award of damages.

 

The law is trite that the party who asserts has the onus or duty to prove his assertion or claim by adducing credible evidence. See Section 131 of the Evidence Act 2011, to the effect that the burden of proof in civil matters lies on the party who would fail if no evidence at all was adduced on either side. The claimant resigned his employment by exhibit OG8. The claimant’s argument is that two letters were handed over to him one for dismissal and the other for resignation and that where he refused to sign the resignation letter, then he will be dismissed.  In paragraph 9 of the statement of facts the claimant averred that one of the letters is to dismiss the claimant with immediate effect and no benefit of one month salary in lieu of notice and the other letter was for resignation which would entitle him to one month salary in lieu. He chose the latter and only signed in the portion provided for signature and date. It is trite law that a master can terminate the employment of his servant at any time of and for any reason or for no reason at all provided the termination is in accordance with the terms of the contract. See GGC (Nig) Ltd v Bakare & Anor (2018) LPELR-46810 (CA). In this case, the claimant’s employment was not terminated but he resigned.  I must comment at this stage that the claimant did not tender the letter of employment for determination of the terms of contract and the defendant has not raised objection to same, so it is not fatal to the claimant’s case. See NIIA v Ayanfulu (2006) LPELR -5960 held        thus

But where in the instant appeal, the appellant admitted the existence of the contract and the condition of service was put in evidence, the rigid rule set down in Morohunfola ‘case will not be adhered to. The parties appear to be ad idem in the instant appeal that there was in existence contract of service. The only area of dispute relates to the manner of removal of the respondent, in that case it may no longer be necessary to tender the letter of appointment

 

The claimant having pleaded existence of contract of employment which the defendant admitted brings the issue of the binding contract between the parties as exhibit (OG1) tendered by the claimant while the defendant tendered same as exhibit (OG7). Having dealt with the issue of letter of employment, the claimant equally averred that the letter of resignation which was imposed on him was taken away by the defendant and same tendered as exhibit OG 8. Below is the resignation letter exhibit (OG8)

 

24/01/2020

I Esekhomo Godwin Chikose hereby resign my appointment today 24th January, 2020 from Oriflame Cosmetics Nigeria Ltd. Today will be my last day and I hereby submit all the company’s possession in my care as stated below

1.     Phone

2.     Sim Card

3.     ID Card.

 

Name                                                                    signature and date  

 

The argument of the claimant in all of this is that he did not resign voluntarily. The claimant continued in his argument that the forceful resignation was not based on any misconduct as the staff hangout which happened after work hours as the day was a half working day took place at the back of the defendant’s premises. In all they were 19 staff but that he was singled out with his close friends with no query. While the claimant here is not only claiming for unlawful dismissal, he opined that is a in itself constructive dismissal as the defendant wrote the resignation letter not based on any wrongdoing by him but made him sign the letter bringing the employment to an end.  In the instant case the defendant enumerated what led to the resignation of the claimant.  The defendant’s first assertion is that the claimant voluntarily resigned from the defendant’s employment after he had admitted to the misconduct of drinking alcohol during office hours and later was found in a state of drunkenness during office hours; that after the warehouse manager Mr oyetoro oyeleye found the claimant drunk he lodged a complaint to the board of directors and the claimant was given the opportunity to respond to the allegation, the board of directors made a decision to present the claimant with two options namely to either resign voluntarily and if he refuses to be dismissed for being drunk during office hours. And that when the claimant was confronted with these allegations, he did not deny neither did he give satisfactory explanation on such behaviour during official hours.

 

Turning to the sole allegation of being drunk during office hours, not being given an opportunity to respond to the allegation, forced   resignation, can the defendant in its testimony be held to have established this allegation? I recall the defendant’s pleading that its relationship with the claimant was regulated by the claimant’s employment contract.  The employment contract exhibit OG1 tendered as exhibit OG8 provides under clause 2–

 

TERM OF APPOINTMENT

2.1 The appointment shall commence on the commencement date and shall continue, subject to the regulating terms of this agreement, until terminated by either party giving the other not less than one-month prior notice in writing.

 

This means there is provision for either party to give one month notice. What then is the evidence of the defendant as regards the averment that the claimant voluntarily resigned his appointment and he equally agreed that he was drunk during office hours. The law is that he who asserts must prove. The defendant in all the allegations did not present any evidence to buttress what it has asserted. The defendant contradicted itself when in stated in paragraph 10 of the statement of defence that it did not force the claimant to resign but that the directors decided to allow the claimant to tender his resignation letter in paragraph 13 of the statement of fact. Below are the two contradictory statements from the defendant’s statement of defence

 

10) The defendant denies paragraph 4 of the statement of facts and states that the claimant was neither dismissed from employment nor forced to append his signature to any document, as the claimant voluntarily resigned from the defendant’s employment after he had admitted to the misconduct of drinking alcohol during office hours and being found in a state of drunkenness during office hours.

 

13)  Further to the above, the defendant therefore scheduled a meeting with the claimant on 24 January 2020 where he was presented with the option to either voluntarily resign from his employment or stand the risk of being dismissed for engaging in the consumption of alcohol during official hours and being drunk during official hours.

 

The defendant in paragraph 13 above imposed it on the claimant to tender his resignation letter which is contrary to the use of the word voluntary. Since he was given the told to resign, that signifies force. It seems that the defendant is not aware of the law as regards resignation. START.

 

The claimant resigned without notice and no demand made from him to pay salary in lieu of notice as no notice was given.  It is accordingly not unexpected that the defendant would demand for payment in lieu but curiously, he was paid one month in lieu and refers to same as soft landing.  I wonder how exhibit OG 9 can qualify as evidence in the face of such serious allegation of drunkenness during office hours. How can the defendant pick up empty cans of drink and present same to this court as that consumed by the claimant.  There is nothing to show that the claimant was equally involved in the organisation of any party. It is the position of the law that documentary evidence being permanent in form is more reliable than oral evidence and is used as hanger to test the credibility of oral evidence. See Cameroun Airlines v Otutuizu (2011) ALL FWLR (Pt 570) 1260 at 1277, Civil Design Construction (Nig) Ltd v SCOA (Nig) Ltd (2007) ALL FWLR (Pt 363). It is the defendant that has asserted and it has to prove. DW was categorical that the claimant resigned voluntarily and even had to make a choice of either resigning voluntarily or being dismissed. Such evidence is not before this court as DW was evasive in response to the questions.  Under cross examination DW stated thus

 

Que: can you confirm the date and time the picture was taken

Ans:   I cannot confirm same

Que:  Read paragraph 25 of your statement and this means prior to this you have reviewed the recordings of the CCTV

Ans:  We had but it was malfunctioning then

Que:  has the claimant been guilty of any misconduct in the course of his employment

Ans:   I don’t have record as I was not his manager.

 

Now going by the shattered and thoroughly discredited evidence of DW, I find that he  merely deposed to the witness statement on oath without evidence as he was exposed under cross examination as not a witness of truth and the law is settled that notwithstanding the difficulty of discerning absolute truth by mechanism of judicial discernment hinged upon evidence before the court, the process of litigation is aimed at finding out the truth according to law and is a party is seeking the consideration of the court, must endeavour to be consistent in both facts he pleads and the evidence he leads in proof of those facts.  A party cannot set out pleadings without evidence in proof of same as same will be inconsistent with the case he has pleaded. The defendant did not tender any document save for four empty cans of beer (OG 9) and wants the court to believe that the claimant consumed the drinks.  

  

The above resignation letter is in total a forced resignation on the claimant. The defendant in its pleading in paragraph 11 of the statement of defence and paragraph 2.2 of the reply on point of law agreed that the claimant was made to resign. In paragraph 2.2 the defendant argued that the officers calmly advised the claimant to resign to give him  a soft landing as against the picture the claimant created while in paragraph 13 of his pleading that the defendant therefore scheduled a meeting with the claimant on the 24th of January 2020 where he was presented with the option to either voluntarily resign from his employment or stand the risk of being dismissed for engaging in the consumption of alcohol during official hours and being drunk. This in itself corroborates the claimant’s claim that he was forced to resign as the resignation was with immediate effect and he did not pay to the defendant for the notice period as provided in his letter of employment (exhibit AO1). See INEC & Ors v Orji & Ors (2009) LPELR -4320 (CA) the court held that resignation from employment is by giving of the required length of notice or payment in lieu of notice. It does pleasantly appear to me that the defendant and I dare say his counsel is ignorant of what a constructive dismissal is and the effect. however, there is no denial by the defendant that the claimant was forced to resign. having agreed to same, the position of the law is that facts admitted need no further proof.

 

The oral testimony of the Claimant is that he was given two letters and not allowed to read and the defendant went further to explain the consequences of not signing the typed letters. After signing, the letter was not given to the claimant. If the claimant wrote the resignation letter, the defendant will acknowledge same on a copy as resignation becomes effective on the day it is received by the employer. In this case, the letter was not addressed to anybody and does not bear the address of the claimant. The letter was typed and he only inserted his name and signature.

 

The fact remains that DW was involved in the process of resignation of the claimant and being evasive when questions were put across to him makes his evidence not a credible one. A look at the defendant’s final written address captures the truth that on the claimant’s forced resignation in paragraph 35   

 

Therefore, the defendant has been magnanimous in going the extra mile of advising the claimant to resign when he was drunk at work with the consequence of paying him one month salary in lieu of notice when the defendant could have dismissed him from work.

 

DW is not a witness of truth as he was very evasive at answering questions put across during cross examination.  No witness who has given on oath to material of inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness. In the face of the contradictory evidence given by the DW, I believe the testimony of the claimant that he was given a typed letter of resignation by the defendant and only appended his signature. The evidence of CW is more believable than DW who was evasive throughout. In this case, the claimant has discharged by credible evidence the evidential burden of proving the circumstance under which he resigned. Having not led credible evidence in that regard the defence of the defendant has collapsed thereby entitling the clamant to the declaration that the resignation was involuntary.  What is more, the defendant argued extensively that the claimant was confronted with the allegation of drunkenness, meeting on 24th January 2020 where he voluntarily elected to choose the option of resigning, consumption of alcohol and the response of the claimant that he had a right to consume alcohol are not backed by evidence.  In fact, the defendant’s response in paragraph 21 of the statement of defense leaves much to be desired as it averred that the claimant failed to employ the complaint procedure, The claimant was never queried so could not have initiated a complaint procedure as he was only given a letter which turned out to be resignation letter and was forced to sign same.

 

The second argument of the claimant is that his resignation was forceful, involuntary and tantamount to constructive dismissal of the claimant by the defendant. This court in Ebere Ukoji v Standard Alliance Life Assurance Co Ltd (2014) 47 NLLR (part 154) 531 NIC held that in a situation where the employer becomes intolerable and makes life difficult thereby making the employee with no choice but to resign or openly asking employee to resign, such is referred to as constructive dismissal or discharge.  I held earlier that the claimant was forced to resign and was paid one month salary in lieu of notice having not given notice contrary to the provisions under the term of appointment which provides thus

 

The appointment shall commence on the commencement date and shall continue, subject to the remaining terms of the agreement until terminated by either party giving the other not less than 1-month prior notice in writing           

 

The claimant wrote a letter of resignation and no notice but was compensated with one month salary. To the court, there are various acts of the defendant which if examined shows the claimant was dismissed constructively.  He was forced to resign by the defendant as such the resignation is involuntary.

 

The earlier letter of resignation produced shows an urgency in the claimant’s assertion that he was compelled to resign. This is a clear indication that he was forced to resign on the 2nd of July 2014 and must leave the premises that day unfailingly.

 

I am satisfied and convinced that the reason for the claimant’s resignation stems from the allegation of drunkenness during official period which has remained unproven and I so hold. In Patrick Obiora Modilim v UBA unreported suit no NICN/ LA/353 /2012 the judgement of which was delivered on 19th June 2014 this court held that attempt to have employee resign, rather than outright firing the employee means that the employer is trying to create a constructive discharge and for which a case of constructive dismissal is made.

Based on this finding that the claimant was forced to resign he is therefore entitled to damages. Where the employer in terminating or dispensing with the services of an employee does so without due regard of the terms and conditions of contract of employment between the parties that courts without hesitation usually declared wrongful and appropriate measure of damages awarded to the plaintiff. See Patrick Zideeh v R.S.C (2007) 3 NWLR (PT 1022)554 @ 577). The offer letter referred to in exhibit OG1 clause 7 under salary referred to an offer letter which is not before the court.  The defendant’s   letter exhibit OG2 tendered by the claimant is on salary increment to N1,020,480 which means the claimant is aware of his salary and contrary to the claimant’s averment in his statement of facts in paragraphs 13. 15 (i) (ii). In paragraph 15 (iii)the claimant averred that with the mortgage scheme introduced to the workers the defendant was making monthly deductions from his salaries. This means the claimant was well aware of his salary otherwise how did he know of the deduction of pension contributions and mortgage scheme from his salaries. I find and hold that the resignation is tantamount to constructive dismissal. Accordingly, the claimant is entitled to damages of six months’ salary.

 

On the whole, I declare and order as follows in this judgment

 

1.     It is declared that the resignation letter dated the 24th of January 2020 was forced on the claimant to resign by the officers of the defendant which is involuntary but not unlawful.

 

2.     The defendant is ordered to pay the claimant general damages in the equivalent of 6 months’ salary for the forced resignation.

 

3.     Cost of N100, 000 is awarded against the defendant.

 

4.     All sums are to be paid within 30 days from now failing which it will attract interest of 10% per annum until all sums are fully liquidated.

 

Judgment is entered accordingly.

 

 

 

HON. JUSTICE A.N. UBAKA

JUDGE