WD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE E.D. SUBILIM

DATED: 28^TH NOVEMBER, 2024                             

SUIT NO: NICN/ABJ/136/2024

BETWEEN

CHARLENE C. MAKAI                                                        -           CLAIMANT

AND

 NIGERIAN CHRISTIAN PILGRIM COMMISSION -     DEFENDANT

REPRESENTATION

Ajibola Bello, Esq with Ayokunle Erin Esq, P.C Ifezue, Esq and Vanessa Chukwuyenum Esq for the Claimant.

J.O. Obule Esq with F.F. Ejembi Esq for the Defendant.

                                                            JUDGMENT

1.      The Claimant commenced this action by a General Form of Complaint filed on 23^rd day of May, 2024, claiming the following reliefs against the defendant:

a.      A DECLARATION of this Honourable Court that the cumulative acts of the Executive Secretary of the Defendant towards the Claimant had a materially negative and adverse effect on the Claimant’s working conditions giving rise to the forced resignation of the Claimant and thereby constitutes “Constructive Dismissal” of the Claimant by the Defendant.

b.      A DECLARATION of this Honourable Court that the cumulative acts of the Executive Secretary of the Defendant towards the Claimant amount to an unfair labour practice.

c.      AN ORDER of this Honourable Court nullifying and setting aside the query dated 23^rd of April 2024 and issued to the Claimant, same having been issued after the Claimant’s forced resignation from the Defendant.

d.      AN ORDER of this Honourable Court directing the Defendant to pay to the Claimant the aggregate sum of One Hundred and Seventy-Eight Thousand, Three Hundred and Sixty-Nine Naira Fifty Kobo (N178, 369.50K) being the Claimant’s monthly gross salary and allowances for the month of April 2024.

e.      AN ORDER of this Honourable Court directing the Defendant to pay the sum of Eighty-Six Thousand Four Hundred and Sixty Naira (?86,460.00) only being the amount owed to the Claimant as kilometer allowance for her deployment.

f.        AN ORDER of this Honourable Court directing the Defendant to pay the sum of Forty-One Thousand Two Hundred and Fifty-Two Naira Seventeen Kobo (?41,252.17) being the amount owed to the Claimant as Resettlement allowance for her deployment.

g.      AN ORDER of this Honourable Court directing the Defendant to pay the sum of Two Hundred Fifty-Two Thousand Naira (?252,000.00) only being the amount owed to the Claimant as First Twenty-Eight (28) days allowance for her deployment.

h.      AN ORDER of this Honourable Court mandating the Defendant to pay the Claimant Ten Million Naira (N10, 000,000.00) as general Damages for constructive dismissal and unfair labour practice.

i.        AN ORDER of this Honourable Court mandating the Defendant to pay the sum of Two Million Naira (N2, 000,000.00)) as cost of this suit.

j.        AN ORDER of this Honourable Court mandating the Defendant to pay 10% (Ten percent) on the judgement sum per annum until final liquidation of the judgement sum by the Defendant.

2.      It is the Claimant’s case vide her Statement of Facts that she was an employee of the defendant and that while in the employment of the defendant, she was redeployed to the South-East Zonal office of the Defendant to work under a junior officer. She averred that by the Public Service Rules which guides her conditions of service the transfer attracts allowances for the first twenty-eight (28) days of her deployment which was denied her despite the fact that her other colleagues who were also redeployed were paid. Claimant also averred that she applied for her annual leave upon redeployment to South East Zonal office through her Zonal Coordinator and approved it effective from 29^th February, 2024 and to end on 10^th April, 2024. Claimant further averred that it was during the period of her leave that the Executive Secretary of the defendant removed the Zonal Coordinator from office and issued a memorandum instructing the Zonal Coordinators to stop approving leave requests for staff and that all leave applications were to be addressed and forwarded to the office of the Executive Secretary for approval. She averred also that she has been appointed as a Special Assistant on Employment and Job Creation Policy to the Senator representing Plateau Central Senatorial District who formally requested her on secondment as a Special Assistant to the office of the Senator. However, the Executive Secretary in response to the said request falsely and maliciously responded that the Claimant would not be released as she was under investigation by the Economic and Financial Crimes Commission (EFCC) for alleged financial infractions and conversion of public properties and further directed that Claimant’s monthly salaries be stopped until further notice without providing any explanation. She continued that a result of the toxic environment and the hostile treatment meted and targeted on the Claimant, she was forced to resign on the 22^nd of April 2024 and which resignation was duly acknowledged.  That on 23^rd April, 2024 after her resignation, she received a query from the Defendant to explain why she proceeded on annual leave without requisite approval.

3.      The Defendant in response filed its statement of defence though belatedly but was regularized by an order of Court. It is the contention of the Defendant that the Claimant worked closely as Protocol Officer to the former Executive Secretary of the Defendant. Defendant further stated that the former Executive Secretary refused and failed to hand over the affairs of the Defendant to the new Executive Secretary. That claimant’s transfer to the Enugu Zonal Office was part of the reorganization programs of the new Executive Secretary. Defendant stated that claimant’s request for her allowances were not attended to because it was not addressed properly as she disdainfully addressed it directly to the Executive Secretary. Defendant also maintained that instead of claimant resuming office fully in the Enugu Zonal office, she connived with the Zonal Coordinator who was a junior officer to approve her leave on the same day she reported and resumed office. It is part of Defendant’s averments that the former Executive Secretary whom claimant served as Head of Protocol while in office was involved in financial misappropriation to the tune of N3,800,000,000 and that some of the affected vouchers were traced to claimant who was a trusted aide to the former Executive Secretary. That the claimant and some other staff were given vehicles for their personal use which are the property of the defendant. Defendant also averred that the cases are currently being investigated by the EFCC and Claimant’s request for secondment was only a ploy to evade investigation by the Law enforcement agents as to her involvement in the financial misappropriation hence the refusal by the defendant. The Defendant stated and maintained that claimant resigned her employment without giving the defendant the required one month notice or salary in lieu, and that she worked for only 21 days in the month of April before her resignation and as such is not entitled to salary for that month as she was indebted to the defendant for the one-month salary in lieu of notice. It also averred that even though claimant’s resignation was dated 22^nd April, 2024, it was accepted on the 26^th April, 2024 and it was before the acceptance that she was given query as to why she proceeded on leave without the requisite approval.

4.      On the 27^th day of June, 2024, claimant opened her case by testifying for herself as CW 1 by adopting her Written Statements on Oath of 23/05/2024 and 26/06/2024 as her oral evidence. Documents were tendered through her, admitted and marked as Exhibits Makai 1-17. She was subsequently cross examined by learned defendant’s counsel on behalf of the defendant who tendered Exhibit MAKAI A through her under cross examination.

5.      The defendant opened its case on 12^th day of July, 2024 when it called one Ephraim Josiah Ekpe as DW 1 and he testified by adopting his Written Statement on Oath of 20/06/2024 as his oral evidence. Series of documents were admitted and marked as Exhibits Ekpe 1-6. He was subsequently cross examined by counsel to Claimant who also tendered Exhibit Ekpe 7 through the witness under cross examination.

FINAL WRITTEN SUBMISSION BY COUNSEL TO DEFENDANT

6.      In his final written address learned counsel to the Defendant formulated four issues for determination to wit:

1.      Whether from the state of evidence placed before this Court, the acts of the Executive Secretary of the defendant towards the Claimant amounted to unfair labour practice and forced her to resign from the services of the defendant

2.      Whether the Defendant has the vires to issue the Query dated April 23^rd April, 2024 on the Claimant

3.      Whether the claimant is entitled to the monetary claims in d, e, f and g of her statement of facts.

4.      Whether the Claimant is entitled to the cost of this suit

7.      On issue one, counsel submitted that the posting of claimant to the South East Zone is consistent with the terms of her employment and does not amount to victimization to necessitate her resignation because just like she admitted under cross examination other married women like herself were posted to Zonal offices. Counsel submitted that the argument of the claimant that she was posted under a junior officer is lame in the sense that the defendant was able to show that if claimant had resumed and settled down, she would have been named the Zonal Coordinator. Counsel argued that defendant was able to show that claimant proceeded on an unauthorized leave which was wrongly approved by a junior officer and that there was no malice in the actions of the Executive Secretary but that claimant’s resignation was only an attempt to escape from her actions while serving as Head of Protocols to the former Executive Secretary.

8.      On issue two above, counsel submitted that the defendant had the vires to issue query to the claimant as it did on the 23^rd of April, 2024 as she was still in the employment of the defendant till her resignation was accepted on 26^th April, 2024. He relied on the provisions of Rule 100302 of the Public Service Rules, 2011 which empowers the defendant to discipline its staff. He submitted that the claimant had proceeded on an improperly approved leave contrary to Rule 120202 of the Public Service Rules. He submitted that the query was substantially regular and cannot be validly set aside as it enjoys a presumption of regularity. He relied on the case of Oke Oyedele v. Michael Odumosu [2016] LPELR-41441 (CA).

9.      With respect to issue three that claimant is not entitled to the monetary claims sought because they are in the realm of special damages that must be specifically pleaded and strictly proved. He relied on the following cases; Mobil Producing (Nig) Unlimited v. Kofa & Ors [2018] LPELR-46709 (CA); NNPC v. Clifco Nig Ltd [2011]4 MJSC 142@147 and UNILORIN Teaching Hospital v. Abegunde [2013] LPELR-21375 (CA). He submitted that claimant is not entitled to any of the allowances she is claiming because she has not earned them. He also submitted that claimant did not work when she resumed in Enugu Zonal office, instead she went on an unapproved leave. He submitted that claimant’s answer under cross examination that she heard a phone conversation from the Director of Administration that the IPPIS had been written to stop her salary is hearsay which cannot stand. He relied on Section 37 of the Evidence Act and the case of Orji v. Ugochukwu [2009]14 NWLR (Pt. 1161)228@233. He also submitted that the failure of the claimant to call the Director of Administration to testify and the failure to give the defendant notice to produce the said letter written to the IPPIS should be resolved against her as withholding evidence. See Section 167(d) of the Evidence Act and the case of Okeke v. IGP [2021] LPELR-01111 (SC). He urged the Court to hold that claimant is not entitled to any of the sums claimed.

10. In respect of issue four, it is the learned defendant counsel’s submission that claimant is not entitled to recover cost of action in this case. He relied on the case of Ihekwoaba v. African Continental Bank Ltd [1998] NWLR (Pt. 571)590@610-611. He submitted that the relief is one of special damages that must be specifically pleaded and strictly proved. He referred the Court to the case of Balogun v. Ambikanhan [1985] LPELR-FCA/1/129/82. He posited that the receipt tendered by claimant was not addressed to her or anyone neither did the claimant call the accountant who signed the receipt to testify in her favour. He also posited that the address on the receipt is different from the address of the claimant’s lawyer before the Court. He submitted that claimant who told the Court that she paid the said money to the lawyer in four instalments has not proven how she was able to get the said sum of two million Naira in this era of cashless policy. He urged the Court to hold that claimant did not pay the said sum to her lawyer.

FINAL WRITTEN ADDRESS BY COUNSEL TO CLAIMANT

11. On the 25^th September, 2024, claimant through her counsel filed her final written address wherein learned counsel on her behalf formulated two issues for determination as follows:

1.      Whether, given the sum total of evidence led in this case, the claimant was constructively dismissed by the defendant?

2.      Whether in the light of the evidence before the court and the standard of proof required in civil cases, the claimant is entitled to all the reliefs sought?

12. On issue one, it is the submission of learned claimant’s counsel that the series of acts or practices that may amount to constructive dismissal are in-exhaustive but include intimidation, sexual/violent harassment, public ridicule or demeaning an employee in presence of others, failure to provide adequate support for an employee to do their job, unreasonable work demands, unilaterally changing terms of employment contract, discrimination, bullying, threats and ridiculous grounds for suspension, indefinite suspension, unjustifiable pay-cut, or no payment of salaries, unjust transfer or relocation, demotion for unjustifiable reasons, subjecting an employee to constant criticism and exposing employee to danger.  He relied on the case of Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd [2014]47 NLLR (PT. 154) 531. Counsel submitted that relying on exhibits Ekpe 1 to Ekpe 3, Ekpe 5 and Ekpe 6 it goes to show that Defendant has a grouse with the former Executive Secretary in person of Reverend Dr. Yakubu Pam, in relation to the handing over of his administration and alleged misappropriation of funds. It is his submission that it was in view of the working relationship that the Claimant had with the former Executive Secretary that made the defendant deploy the claimant to the South East Zone to work under a junior staff which was not the same with other staff that were equally deployed as seen in Exhibit Ekpe 7. He also submitted that on the strength of exhibit Makai 7 and Makai 15 it is clear that the Defendant was witch-hunting the Claimant simply for working with the former Executive Secretary. He equally submitted that the allegation that the Claimant connived with the former zonal Coordinator who was lower in rank to her, in getting her leave approved was not proved as there is no iota of evidence in support. He submitted that the defence of the defendant as to the reason for non-payment of claimant’s allowance is unfounded while relying on the cases of Intels (Nig) Ltd & Ors v. Bassey [2011] LPELR-4326(CA) and Browning v. Crumlin Valley Colleries Ltd [1964] ALL ER 936.

13. Learned counsel submitted that the position of the defendant that claimant was being investigated for financial misappropriation is malicious and unfounded as the defendant knew quite well that it was the former Executive Secretary who was being investigated as shown by Exhibit Ekpe 5, yet, the defendant in Exhibit Makai A alleged that claimant was being investigated. He submitted while relying on a decision of this Court per Olukayode Arowosegbe, J. in Engr. Chibuzor Albert Agulana v. Dr Fabian Okonkwo (Unreported Suit No: NICN/EN/35/2021) (Delivered on the 17^th of April, 2024 that it was defaming for an employer to make unfounded allegations against an employer.

14. Learned claimant counsel also submitted it is unfounded in law that upon the resignation of an employee, a query would still be served on such employee and that it is not the acceptance of the resignation that gives it effect, rather, the resignation takes effect upon the notice being given. He relied on the case of Sagamu Microfinance Bank Plc v. Lawal [2022] LPELR-58767(CA). He submitted that claimant’s resignation took effect on 22^nd of April, 2024 and therefore renders the subsequent query nugatory, ineffective, null and void. He equally submitted that a party cannot approbate and reprobate at the same time while relying on the cases of De-Canon Investment Ltd v. SEC & Ors [2022] LPELR-57387 (CA); NBCI v. Integrated Gas (Nig) Ltd & Anor [2005] LPELR-2016 (SC); and Mr. Adebayo Adesina v. Veritas Glanvills Pension Limited (Unreported Suit No: NICN/LA/41/2019) (Delivered 6^th July, 2020). Thus, the argument by the Defendant that the acceptance was sent three days before query was issued is irrelevant. He submitted that the claimant in line with the decision of this Court in Mr. Adebayo Adesina v. Veritas Glanvills Pension, supra as to timeous resignation; upon discovery that her salaries had been stopped and her secondment refused had to resigned from the Defendant’s employment because they had continuously frustrated her and made the environment intolerable and hostile to her. Counsel also submitted that while relying on the case Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd, supra that the resignation of employees could be triggered by a single event or series of incident which happened shortly before the resignation being fundamentally laced with involuntariness. He also relied on the following cases; Mr Patrick Obiora Modillim v. United Bank For Africa Plc, Unreported, Judgment Delivered On June 19, 2014 Unreported Suit No. NICN/LA/353/2012 and; Etuechere Martins v. National Film and Video Censors Board & 6 Ors, Unreported NICN/ABJ/246/2019 delivered on 3^rd December, 2020.

15. On issue two, counsel submitted that the claimant is entitled to all reliefs sought in view of the position of the law, the evidence adduced and the arguments canvassed in favour of the Claimant. He submitted that it is trite law that in civil suits, the standard of proof is based on the balance of probabilities and that by Section137 of the Evidence (amendment) Act 2023, the burden of proof lies on the party against whom the judgment of the Court would be given if no evidence were produced.  He called in aid the case of PDP & Anor. v. INEC & Ors [2008] LPELR-8597 CA.  He posited that the Claimant has discharged the burden of proof imposed by her oral evidence as CW1 and Exhibits tendered. It is his submission that declaratory reliefs are not granted as a matter of course, but on the strength of the Claimant’s case and she placed sufficient evidence before the Court to entitle her to the declaration sought. He relied on the case of Matanmi & Ors v. Dada & Anor [2013] LPELR-19929(SC).

16. Learned counsel equally submitted that claimant has been able to show that cumulatively the acts of the Executive Secretary of the defendant made working with the defendant intolerable and as such has proved that her forced resignation was a case of constructive dismissal and that same is an unfair labour practice. In the same vein, he submitted that with regards to relief three, he submitted that claimant resigned from employment of the defendant on the 22^nd of April 2024 the same day  exhibit Makai 13 was acknowledged, thereby giving effect to the resignation. Accordingly, the query issued to the Claimant on the 23rd of April, 2024 (Makai 15) should be of no effect and it is on that basis that the court is urged to grant relief three by setting aside the said query. It is his position that as per relief four, Claimant’s GTBank statement of account that is exhibit Makai 12 did show that she was not paid salary for the Month of April 2024 following the Directive issued by the Executive Secretary.

17.  With regards to reliefs five, six and seven, it is instructive that the reliefs claimed therein are statutory, rather than one that is commercial. In this regard, Rule 140102 (h), (k) and (o) of the Public Service Rules 2021 provides that officers are respectively entitled to Hotel Accommodation Allowance (1st 28 Days), Kilometer allowance, and Resettlement Allowances. He posited that the defendant did not deny the content of the application made in Makai 5a and 5b. Rather, what the defendant contended is that the applications were not routed through the appropriate channel.  As per relief eight, for general damages for constructive dismissal, this Court is empowered by section 19 (b) and (d) NATIONAL INDUSTRIAL ACT 2006 to award damages. He also relied on the case of Skye Bank Plc V. Mr. Adedokun Olusegun Adegun (Unreported, Suit: SC/406/2018) (Judgment delivered 27th February, 2024).  He also submitted while relying on the case of Rockonoh Properties Co. Ltd v. NITEL Plc [2001] 14 NWLR (Pt.733) 468, 493 that general damages do not need to be specifically proved as all that needs to be established is that a wrong has been done. On the strength of the above he submitted the claimant is entitled to damages for constructive dismissal.

18.  In respect of relief nine, he submitted that same is special damages. He relied on Shell Petroleum Development Company Of Nigeria Limited v. Chief G. Tiebo Vii & Ors [2005] 3-4 SC (PART III) 27; Neka Bbb Manufacturing Co. Ltd. v. African Continental Bank Ltd [2004] 1 SC (PT 1) 32 and; NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC).  He submitted that Claimant in fulfilment of the need to prove special damages tendered Makai 16 which is the receipt issued to her for the payment made to her lawyers and upon which she was cross –examined. He posited while relying on the case of Haco Ltd. v. Brown [1973] LPELR – 1347 [SC] PP. 8 – 9, PARAS. F – A that successful litigant, is, entitled to other costs of litigation.

19. As per relief 10, he submitted that this court is empowered by Order 47 of the Rules of this court to specify the number of days within which the defendant is to pay the judgment sum and also to award post-judgment interest, where the defendant fails to comply. He urged the Court to direct the Defendant to pay judgment awarded to the Claimant within 20 days, failure upon which relief 10, requiring 10% interest on the judgment sum should apply.

20.  Learned counsel also submitted in response to the issue raised by the defendant that the Claimant does not deny the common practice of deployment or that married women are deployed in the Commission but that it has been sufficiently proven that the deployment was malicious in view of the fact that she was to work under a junior officer. He posited that the claimant had tendered ‘Ekpe 7’ through the DW 1 which document clearly shows that while other members of the Commission had been assigned to expressly head their zones of deployment, the claimant’s position was left without same. He submitted that the alleged intention of the defendant to make the Claimant the head of the zonal office she was deployed to is highly speculative and goes to no issue. He relied on the case of APC v. Okorodudu & Anor [2019] LPELR-47762(CA).

21. Learned counsel submitted that claimant’s leave approval was proper while relying on Rules 120202 of the Public Service Rules, 2021. He also submitted that a junior officer being the Zonal Coordinator was the making of the defendant and not the claimant and that the memorandum that all leave applications to be forwarded to the Executive Secretary had only been issued after the leave of the Claimant had been granted and therefore should not affect her already approved leave. He submitted with regards to the issue raised by the defendant as to acceptance of the resignation that it is irrelevant as the resignation letter was acknowledged on the same day it was submitted and a such claimant is deemed to have resigned that very day. He referred the Court to the case of Mr. Adebayo Adesina v. Veritas Glanvills Pension Limited, supra. Counsel also argued that claimant is entitled to the monetary reliefs sought as she gave a breakdown of how the sums claimed were arrived at in exhibits Makai 5a and 5b.

DEFENDANT’S REPLY ON POINT OF LAW

22. On the 9^th day of October, 2024, the defendant in response filed its Reply on points of law to the final written address of claimant. Therein learned counsel argued with respect to issue one in the claimant’s final written address that constructive dismissal happens where an employee is forced to resign his employment. He called in aid the case of Ogbonna v. Union Bank Nig Ltd [2006]12 NWLR (Pt. 994)333. He explained that claimant has failed to prove the four essential elements that must be present to establish constructive dismissal. He submitted that given the evidence on record; claimant has not been able to substantiate her claims that the defendant halted her salaries. He equally submitted that no action of the defendant was intolerable for claimant to continue to work.

23. With respect to issue two, counsel submitted while relying on Section 137 of the Evidence (Amendment) Act, 2023 that the claimant is not entitled to all the reliefs sought because she did not discharge the burden of proof placed on her by the law. He also referred the Court to the case of PDP v. INEC & Ors [2008]LPELR 8597. He posited that declaratory reliefs are not granted as a matter of course but only on the strength of claimant’s case. He cited in support the following cases; Maitama & Ors v. Dada & Anor [2013] LPELR-19929 (SC); British Aitrways v. Makanjuola [1993]8 NWLR  (Pt 311)276@288 and Neka B BB Manufacturing Co Ltd v. African Continental Bank Ltd, supra. He submitted that on the strength of the authorities cited, the claimant is not entitled to the declaration and damages sought by her.

COURT’S DECISION

24. I have painstakingly perused the Originating process together with the accompanying processes, the statement of defence along with its accompanying processes, the reply of the claimant to the statement of defence together with its accompanying processes, the final written addresses of parties and the Reply on the points of law. I am of the view that the issues that best determine this case are;

1.      Whether the resignation of claimant amounts to constructive dismissal?

2.      Whether the claimant has proven her case to be entitled to the reliefs sought in this case?

25. A perusal of the Originating process evinces that the claimant in this case seeks declaratory reliefs. It must be noted that a claim for declaratory relief is a discretionary remedy which is neither granted as a matter of course nor on admission of the adverse party. Thus, a claimant seeking such must rely on the strength of his or her own case and not on the weakness of the defendant by leading credible evidence in support of his case. See TSY Ltd v. Nwachukwu [2024]13 NWLR (Pt. 1954)147@173-174, Paras F-A (SC); Aliyu v. Namadi [2023]8 NWLR (Pt. 1885)161@214, Paras C-E (SC) Adamu v. Nigerian Airforce [2022] 5NWLR (Pt 1822)159@177, Paras F-G; 178, Paras E-G (SC) and; Adesina v. AirFrance [2022]8 NWLR (Pt. 1833)523@555-556, Paras H-B. In the instant case claimant has the onus to prove her case as the law requires. She is only entitled to rely on aspects of the defendant’s case that supports her case. See Hanatu v. Amadiu [2020]9 NWLR (Pt. 1728)115@128, Paras A-C (SC); C.D.C (Nig) Ltd v. SCOA (Nig) Ltd [2007]6 NWLR (Pt. 1030)300@327, Paras A-F (SC).

26. The grouse of the claimant in this case is that her resignation was forced and as such that gave rise to constructive dismissal.  In essence, claimant is claiming that her resignation was forced and as such she was constructively dismissed.

27. The concept of constructive dismissal also referred to as constructive discharge came to being due to the global evolving concept of trust in employment relationship in the sense that an employment relationship can be said to be terminated due to the conduct of the employer which has made it difficult to continue the employment relationship. Thus, an employee is allowed to treat an employment relationship as terminated because the employer has made it intolerable for the employee to continue to work for the employer.  The great jurist, Lord Denning M.R.  aptly captured the doctrine in the case of Western Excavating (ECC) Ltd v. Sharp [1978] Q.B. 761 thus; “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, he terminates the contract by reason of the employer’s conduct. He is constructively dismissed…”

28. I must say at this stage that this Court is given jurisdiction by Section 254C (1) of the 1999 Constitution of Federal Republic of Nigeria (as Amended) with respect to the application of international best practice and issues relating to unfair labour practice and international labour standards. It is in exercise of that power that this Court often considers labour standards and international best practices as laid down in International Labour Organization (ILO) Conventions, Recommendations and Protocols.

29. This Court finds that the concept of constructive dismissal/discharge has equally been accepted as part of the ILO jurisprudence especially in ILO Convention on Termination of Employment, 1982 (C158). One may want to argue that the Article did not make use of the word constructive dismissal in any of its articles.

30. However, it is the belief of many labour scholars have said that Convention also covers constructive dismissal. I say so in view of the fact that Article 3 of the ILO Termination of Employment (C158) states thus; “For the purpose of this Convention the terms termination and termination of employment mean termination of employment at the initiative of the employer” It then means that under Convention 158 of the ILO, any employer induced termination of employment is also regarded as termination under the Convention and which is protected by the Convention.

31. In order to underscore the fact that the above definition of termination of employment in Convention 158 envisages constructive dismissal or discharge, I will place great reliance on the position of the ILO Committee of Experts on the Application of Conventions and Recommendations in its General Survey on the Application of Conventions and Recommendations, International Labour Conference, 82^nd Session, Geneva, 1995. The ILO Committee of Experts particularly at paragraph 22 thereof while addressing the definition of termination in Convention 158 resolved thus; “The manner in which the termination of an employment relationship is defined is of particular importance. If, instead of dismissal, the termination of the employment relationship though really at the initiative of the employer is wrongly  labeled by him for example as resignation, breach of contract, retirement, modification of contract, force majeure or judicial termination, the rules of protection governing termination might apparently seem not to apply; but the use of such terminology should not enable the employer to circumvent the obligations with regard to the protection prescribed in the event of dismissal. Certain changes   introduced by the employer in particular as concerns conditions of employment and which do not arise out of genuine operational requirements, might place the worker under pressure either to accept such changes or to give up his job or incur the risk of being sanctioned for having disregarded the employer’s instructions. It is therefore necessary to be able to verify whether a situation does not constitute a disguised dismissal or a real termination of the relationship instigated by the employer in the sense of the Convention, since otherwise the worker concerned would de facto or de jure be unduly deprived of the protection provided by the Convention.”

32. In the footnote to paragraph 22 of the 1995 General Survey the ILO Committee of Expert makes the position of the Committee of expert clearer. It reads; “If the employer makes the working conditions of the worker so intolerable that the latter is forced to resign, the employer commits what is called in some countries a “constructive discharge” and the worker may take legal proceedings as if he had been dismissed by the employer…” It is therefore clear without any shadow of doubt that Convention 158 also covers constructive dismissal or discharge in view of the position of the Committee of experts on the said Convention 158. Although Convention 158 and its Recommendation Number 166 has not been ratified by Nigeria, to make it automatically applicable under Section254 C (2) of the Constitution, the Court can still apply it under its jurisdiction to apply international best practices and international labour standards. This is because the ILO jurisprudence which includes its Conventions, Recommendations, Protocols and the opinion of Committee of experts all form the basis of international labour standards and international best practices.

33. I need to say here that  even the Administrative Tribunal of the ILO in the case of M.S.F.L. v. ITU unreported Judgment No. 2967, of ILOAT consideration 9 had this to say about constructive dismissal; “ Constructive dismissal…denotes a situation in which an organization engages in conduct such as to indicate that it no longer considers itself bound by the fundamental terms of the employment contract with the consequence that, if the employee then terminates the contract, he or she is entitled to relief on the basis that the organization wrongfully terminated the contract.  In Botswana, the Industrial Court of Botswana in the case of Moremi v. Westhynd Security (Pty) Ltd [1998] BLR 283@295 held thus; “It would appear that the court should only determine whether the actions of the employer had driven the employee to leave. If the answer is in the affirmation, then such action will amount to constructive dismissal.”

34. The concept has been imported into the Nigerian corpus juris just like we have with other jurisdictions. In the case of Ilodibia v. Nigeria Cement Co Ltd [1997] LPELR-1494(SC)1@18-20, Para C, the Supreme Court affirmed the decision of the trial Court that the indefinite suspension of the claimant amounted to constructive dismissal. See also the case of CBN & Anor v. Aribo [2017] LPELR-47932(SC) where the Supreme Court held that the involuntary resignation of the respondent in that case following his indictment by a panel in an act of misconduct amounted to constructive dismissal associated with misconduct.

35. This Court in the case of Miss Ebere Ukoji v. Standarad Alliance Life Assurance Co. Ltd, supra which was relied on by the claimant at paragraph 4.4 of its final written address explained that forced resignation may be an incidence of constructive dismissal in the following words: “Globally, and in labour/employment law, constructive dismissal, also referred to as constructive dismissal also referred to as constructive discharge occurs when an employee resigns because his/her employer’s behavior has become intolerable or heinous or made life difficult that the employee has no choice but to resign. Given that the resignation was not truly voluntary, it is in effect a termination. In an alternative sense, constructive discharge is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign. Thus, where an employer makes life extremely difficult for an employee, to attempt to have the employee resign, rather than outright firing the employee, the employer is trying to create a constructive discharge. The exact legal consequences differ from country to country but generally, a constructive dismissal leads to the employee’s obligations ending and the employee acquiring the right to seek legal compensation against the employer. The employee may resign over a single serious incident or pattern of incidents, generally, the employee must have resigned soon after the incident.” [Emphasis supplied].

36. It is clear from the above decision of this Court that an alleged forced resignation as in this instant may amount to constructive dismissal. The concept of constructive dismissal or discharge as the case may be has equally been applied by this Court in several of its decisions. See the following decision  of this Court: Mr Henry Eyo v. NTA-Star Tv Network Limited Unreported Suit No NICN/ABJ/151/2019 which judgment was delivered on the 22^nd day of March, 2021 by Hon. Justice O.O. Oyewumi (now JCA); Mrs Issey Celestina Akinlolu-Olo v. United Bank for Africa Plc Unreported Suit No NICN/LA/4972012 which judgment was delivered on the 1^st day of February, 2016; Mr Adelabu Patrick Olasumbo v. Ecobank Nig. Ltd, Unreported Suit No NICN/LA/257/2016 which was delivered on the 19^th of May,2017 by Hon. Justice B.B. Kanyip. 

37. The law is on a firma terra that he who asserts must prove. The onus is thus on the claimant to prove her assertion of constructive dismissal. In the English case of Western Excavating (ECC) Ltd v. Sharp [1978] Q.B. 761, Lord Denning listed some elements to be proven by a claimant in an action for constructive dismissal as follows;

a.      A breach by repudiation on the part of the employer

b.      The employee electing to accept the breach and treat the contract as having ended

c.      Resignation of the employee in response to the breach

d.      There must be no undue delay in the sense that the employee must not delay too much in accepting the breach as it is always open to an innocent party to waive the breach and treat the contract as continuing (subject to any damages claim they may have)

38. The first elements to be proven is that the employer must has committed a repudiatory breach of the contract between parties. It is worthy of note that repudiatory breach envisaged by the law may be occasioned by a single incident or series of incidences leading to the act leading to the constructive dismissal. This position finds credence in the decision of this Court in the case of Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd (supra).

39. In the case at hand, according to the claimant vide paragraphs 12, 13 and 14 of her statement of facts, the defendant committed series of breaches with the first being the failure of the defendant after repeated demands to pay her allowances even which she was ordinarily entitled to under the Public Service Rules and which allowances were paid to other officers who were deployed to other places like herself. It is worthy of note that the defendant in response to the claimant’s claim to the above allowances vide paragraph 15 of its statement of defence, merely averred that claimant wrongfully and disdainfully addressed her claims straight to the Executive Secretary without properly routing it through the properly established channel of communication in the civil service. The claimant in response vides paragraph 7 of her Reply to statement of defence averred that the first application was routed through the Director of Administration to the Executive Secretary while the second application was routed through the South East Zonal Coordinator to the Executive Secretary. The entitlement of claimant to the above allowances as pleaded in her statement of facts was never contended by the defendant in this case.

40. It is trite that the proof of entitlement is by reference to an instrument which grants it. See the decisions of this Court in; Suraju Rufai v. Bureau of Public Enterprise & Ors Suit No NICN/LA/18/2013 delivered on the 4^th day of June, 2018 and; Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt 208) 39. The claimant in this case had relied on the Public Service Rules which made the said allowances applicable to her. The defendant did not deny that the allowances stated in the Public Service Rules were applicable to claimant or that she was entitled. It is trite that facts not specifically denied or admitted by implication having regard to other facts averred are deemed admitted. See OAN Overseas Agency (Nig) Ltd v. Bronwen Energy Trading Ltd [2022]11 NWLR (Pt 1842)489@522, Paras A-C, 532, Para A.  Thus, it is deemed admitted that the claimant was entitled to those allowances under the Public Service Rules. The status of the PSR as a bye law to the Constitution is not in doubt given the decision of the Apex Court in the case of General of Customs v. Gusau [2017] LPELR- 42081(SC). It is therefore expedient for this Court to consider the provisions of the Public Service Rules, 2021 with respect to the dispute between parties.

41. In the case of Keystone Bank Ltd v. Clarke [2020] LPELR-49732 (CA)1@24, Para A, the Court per Nimpar JCA, relied on the decision in Olaniyan & Ors v. University of Lagos & Anor [1985]2 NWLR (Pt 9) 599 that just like other contracts, contract of employment’s creation and termination are subject to the general principle of contract. As such where the terms of contract are in writing, parties are bound by the express terms of their contract. The duty of Court in such instance is to interpret the terms of contract of the parties and give effect to it. See Sahara Energy Resources Ltd v. Mrs Olawumi Oyebola [2020] LPELR-51806 (CA)1@25-26, Paras B-B; Omega Bank (Nig.) Plc v. O.B.C. Ltd [2005] 8 NWLR (Pt 928) 547 and Daodu v. U.B.A Plc [2004] 9 NWLR (Pt 878)276@ 279. The Court in interpreting the terms of the contract between the parties must give the words their plain, ordinary and natural meaning where the words used are clear and unambiguous. 

42. Learned Claimant counsel in his final written address had relied on Rule 140102 (h), (k) and (o) of the Public Service Rules 2021 as the said allowances being hotel accommodation allowance (1^st 28 days), kilometer allowance and resettlement allowance. I take judicial notice of the provisions of Rules 140104,140106, 140134, and 140136 of the Public Service Rules 2021. Rule 140104 of the Public Service Rules 2021 which provides thus:

140104- Kilometer Allowance shall be paid to newly appointed Officers reporting to their duty station; retiring officers from service; Officers undertaking responsibility using their cars and on transfer or posting at the rates specified in the extant Circular.

In the same vein, Rule 140106 of the PSR provides thus:

140106- Officers   on posting, transfer or on assumption of duty on new appointment at their new station, different from city/town of domicile shall be entitled to transport fare for self, spouse and a maximum of four children. In addition, they shall be eligible for hotel accommodation for the first 28 days or an allowance for the first 28 days in lieu of hotel accommodation, as specified in the extant circular.  

Also Rule 140134 states thus:

Resettlement allowance shall be paid where an Officer is posted or transferred and it is established or confirmed that his living condition has been disturbed. It shall also be granted in compensation for out-of-pocket expenses not covered by other regulations, but which are incurred by the Officers in the course of transfer as defined in Rule 140135.

Similarly, Rule 140136 of the PSR stipulates thus in respect of resettlement allowance:

140136- Resettlement allowance shall be paid at the rate of 2% of an Officer’s annual total emolument.

43. I must say that there is nothing in the above provisions of the PSR or the provisions of Chapter 14 thereof dealing with allowances that suggests that claimant has to apply for any of these allowances which the defendant has not denied that she is entitled to. 

44. Howbeit, the only contention of the defendant as stated above is that claimant did not route her applications through the proper channel as she directly addressed her concerns with the Executive Secretary and as a result she was not paid. Exhibit MAKAI 5 which contained the applications are before the Court and it will help to address the contentions between parties in their oral evidence as to whether the applications were directly addressed to the Executive Secretary or not without routing them through the proper channel.

45. It is trite that where there is both oral and documentary evidence, documentary evidence should be used as a hanger on which to assess oral evidence. See Oyewusi v. Olagbami & Ors [2018] LPELR-44906(SC)1@39, Paras B-B; Interdrill (Nig.) Ltd v. UBA Plc [2017]13 NWLR (Pt. 1581)52@75, Para E; Egharevba v. Osagie [2009] LPELR - 1044 (SC)1@34-35 paras E-A and; Ezemba v. Ibeneme & Anor. [2004] 14 NWLR (Pt. 894) 617. It is also hornbook law that documents legally speaking speak for themselves and not through any other means. See the case of Asuquo &Anor v. Omole & Anor [2019] LPELR-47867 (CA)1@ 41, Para A; Ibrahim v. Abdallah [2019] 17 NWLR (Pt 1701) 293 @ 310, Para F; 316-317, Paras H-A.

46. I have perused exhibit MAKAI 5 which contains claimant’s applications for the first 28 days allowance and I find that contrary to assertion of the defendant in paragraph 15 of its statement of defence and paragraph 16 of the written statement on oath of the DW1 claimant did not directly address her application to the Executive Secretary. The first application was routed through the Director of Administration to the Executive Secretary while the second one was routed through the South East Zonal Coordinator to the Executive Secretary.  The DW1 admitted this much when he stated without equivocation while under cross examination on 12/07/2024 that Exhibit MAKAI 5 was not communicated to the Executive Secretary directly rather it was routed.

47. The law is on a firm pedestal that evidence elicited from a party or his witness(es) under cross examination which goes to support the case of the party cross examining, constitute evidence in support of the case or defence of that party and is just as potent as evidence given during examination in chief. See; Hassan & Anor v. INEC & Ors [2019] LPELR-49207(CA)1@16-17, Paras E-E and; Akomolafe & Anor v. Guardian Press Ltd [2010] LPELR-366(SC)1@15-16, Para C.  Thus, the contention of defendant that failure to pay claimant the allowances was due to the fact that claimant routed her application directly to the Executive Secretary is no more than an afterthought which has no place in law. It is worthy of note that defendant has also not denied claimant’s assertions that the said allowances were paid to her counterparts who were deployed like herself.  

48. It is also the contention of claimant that the defendant maliciously removed the South East Zonal Coordinator from office for granting her annual leave, and forthwith issue a memorandum stopping Zonal Coordinators from granting leave application without the approval of the Executive Secretary. The defendant in response averred vide paragraph 17 of its statement of defence that claimant instead of channeling her application for leave through the Zonal Coordinator to the Director of Administration to the Executive Secretary connived with the former Coordinator who was a junior officer to approve her 30 days leave. The claimant in response vides paragraph 8 of her Reply to statement of defence averred that there was no form of connivance between herself and the Zonal Coordinator as she followed due process in applying for her leave while also stating that it was not her making that the Zonal Coordinator was a junior staff to herself.

49. There was nowhere in the case of the defendant where it maintained that claimant was not entitled to apply for annual leave. I have perused the contents of Exhibits MAKAI 6 and 7 with respect to the leave application. It is clear from Exhibit MAKAI 6 that Claimant’s leave was approved by the Zonal Coordinator whom the defendant has chosen to be her supervising officer notwithstanding that he was a junior officer to claimant.

50. I am mindful of the arguments by learned defendant counsel vide paragraph 4.2 of his final written address while relying on Rule 120202 of the Public Service Rules that claimant’s leave ought to be approved by a ‘superior officer’. May I remind learned counsel that by the case of the defendant and his arguments it was clear that it was the defendant that made the said junior officer a Zonal Coordinator over claimant who was a senior officer. In fact, DW1 while under cross examination by learned claimant counsel on 12/7/2024 admitted that by Exhibit EKPE 7 the defendant made the junior officer Zonal coordinator over claimant while there was no new position given to claimant and that claimant could only take over as Zonal Coordinator when the said Junior Officer on Grade Level 12 is given a letter to step down.  He also admitted all that was expressed about claimant and that it is Defendant intention to make claimant the Zonal Coordinator which intention was never communicated.

51. It is clear from Exhibit EKPE 7 that claimant was to work under the Zonal Coordinator whom both parties agree was claimant’s junior. It is worthy of note that, the Public Service Rules 2021 did not define who is a superior officer; and who has power to approve leave application. In any case, the defendant created the scenario at hand when it made claimant to report to a junior officer as her Zonal Coordinator. I do not see how claimant can be blamed for submitting her leave application for approval to the said Zonal Coordinator who became her boss by the doing of no other person than the defendant itself as seen in Exhibit EKPE 7.

52. The defendant vides paragraph 17 of the statement of defence had made reference to the fact that the ethic of the public service does not approve of the claimant’s leave being approved on the very first day she reported to her new station.  However, the defendant did not lead any credible evidence before this Court in proof of the said ethics. It is the duty of the defendant who asserts that there is such ethics to prove same.

53. Also Learned defendant counsel in his final written address had made a heavy weather of the fact that claimant while under cross examination admitted resuming the Enugu Zonal Office on 27/2/2024 and applied for her annual leave same day which was also granted same day. Learned counsel should be reminded of the trite position of the law that address of Counsel no matter how beautifully written cannot take the place of evidence where there is none. See Angadi v. PDP [2018]15 NWLR (Pt 1641)1@31, Para E; Oyeyemi v. Owoeye [2017]12 NWLR (Pt 1580)364@403, Paras E-F, 404, Paras A-B, 417, Paras D-E and; Agbaruka v. F.B.N Ltd [2010]3NWLR (Pt 1182)465@485, Para G. The written address of counsel cannot be a substitute for any credible evidence either oral or documentary in proof of any fact.

54. I am mindful of the testimony of DW1 in his evidence under cross examination with regard the memo that is Exhibit MAKAI 7 and the purpose which it was to serve when he said that it was a reminder to follow the rules. Since the contents of the said Exhibit MAKAI 7 were recorded in writing, DW1 is not allowed to give account of its content as to what it is meant to do. See Nammagi v. Akote [2021]3NWLR (Pt 1762)170@193, Paras B-F; v. Sahara Energy Ltd v. Oyebola [2020] LPELR-51806 (CA); Davies v. Rahman-Davies & Anor [2018] LPELR-46557(CA)1@13, Para B; Gudusu v. Abubakar [2017] LPELR-43007(CA)1@15-16, Para E; and; Olawoye v. Bello [2015] LPELR-24475(CA) 1@27, Para D. See also Section 128(1) of the Evidence Act, 2011 (as amended). This is because documents legally speaking speak for themselves. As such, the Court is not concerned with the interpretation given to a document by parties or witnesses or what they understand it to mean. See the case of Yadis (Nig) Ltd v. G.N.I.C Ltd [2007] 14 NWLR (Pt 1055) 584 @610, Paras F-H (SC).   

55. Thus, the ipse dixit of DW1 while under cross examination as to what the said Exhibit MAKAI 7 is meant to do is of no evidential value as the document itself is before the Court and will only speak of itself.  It is clear from Exhibit MAKAI 7 that the alleged policy that leave applications of Zonal staff be approved by Executive Secretary only came into being after the claimant’s leave had been approved to commence on 29^th February, 2024. I say so in view of the fact that Exhibit MAKAI 7 was only made on the 21^st March, 2024 and reads thus:

                                    APPROVAL OF LEAVE FOR ZONAL STAFF

This is to bring to the notice of all Zonal Coordinators that henceforth all applications for leave of staff in the Zonal Offices should be forwarded to the Executive Secretary for due approval. On no account should Zonal Coordinators approve leave applications without this laid down procedure.

This is for your information and compliance, please.

56. It is clear from the above contents of Exhibit MAKAI 7 that the policy was only to start ‘henceforth’ from the date of the memorandum which is 21^st March,2024 long after claimant’s leave had been approved. It is clear from the above contents of Exhibit MAKAI 7 that it was never a reminder to follow any rule contrary to the contention of DW1 while under cross examination. The testimony of DW1 while under cross examination that Exhibit MAKAI 7 was a reminder to follow the rules contradicts the contents of Exhibit MAKAI 7. It is a settled principle of our evidence law that oral evidence will not be allowed to contradict documentary evidence. See the following cases: Arije v. Arije & Ors [2018] LPELR-44193(SC)1@36-37, Para E; Fakomiti v. Ilori & Anor [2018] LPELR-46367(CA)1@25, Para A and; Michael Dan Udo v. Chief C. Udom Eshiet [1994] 8 NWLR (Pt 363) 482@503, Paras B - D. Again, I hold that the ipse dixit of DW1 while under cross examination as to Exhibit MAKAI 7 cannot stand.

57. The defendant who is alleging that claimant connived with the Zonal Coordinator to approve her leave application which leave they have not denied that she is entitled to have not brought a scintilla of evidence in proof of their allegation of connivance. More so Exhibit MAKAI 5 clearly showed that the policy for approval of leave of Zonal staff by the Executive Secretary only came into being after approval of claimant’s leave. The law is settled beyond doubt that pleaded facts which are not supported by evidence goes to no issue. See the cases of Abayomi v. Saap-Tech (Nig) Ltd [2020]1NWLR (Pt 1706)453@512, Paras C-E; Jatau & Anor v. Santivi [2020] LPELR-49603(CA) 1@26, Para C; Tanko & Anor v. Mai-Waka& Anor [2009] LPELR-4277(CA) 20, Para E.

58. It is also the law that a Court of law cannot speculate on anything and cannot be asked to speculate on possibilities which are wholly unsupported by evidence. See the following cases; Sule & Ors v. Sule & Ors [2019] LPELR-47178(CA)1@13, Para E; Agip (Nig) Ltd v. Agip Petroli International [2010]5 NWLR (Pt. 1187)348@413, Paras B-D (SC); Ikenta Best (Nig) Ltd v. A.G. Rivers State[2008] LPELR-1476(SC)1@51, Paras D-D  and; ACB Plc & Anor v. Emostrade Ltd [2002]LPELR-207(SC)1@13, Para C. This Court being a Court of law and facts cannot speculate on the fact of connivance pleaded by the defendant which was unsupported by evidence.

59. The claimant equally alleged that upon her offer of appointment as Special Assistant to a Senator, vide exhibit MAKAI 8, the defendant was requested in writing to second her to the National Assembly vide exhibit MAKAI 9. The the defendant responded vide Exhibit MAKAI A wherein it was stated that she was involved in financial misappropriation to the tune of N3.8 billion and is under investigation by the Economic and Financial Crimes Commission (EFCC). Claimant contended that she has never been invited for any investigation by the EFCC; was not involved in any financial misappropriation. The defendant in response alleged that claimant worked closely with the former Executive Secretary of the defendant who is currently under investigation and that claimant only sought to escape her role in the financial misappropriation by seeking refuge under the Senator and that was why the request of the Senator that she be seconded was turned down.

60. The claimant in response vides paragraphs 9 to 12 of her Reply to statement of defence denied any such involvement in any financial misappropriation and maintained that it is the former Executive Secretary that is being investigated and not herself and that till date she has not been invited by the EFCC for any such investigations. The law is settled that the burden of proof is on a party who asserts the positive or affirmative. This is encapsulated in the latin maxim ‘incumbit probatio qui dicit, non qui negat’ meaning-the burden of proving a fact rest on the party who asserts the affirmative of the issue and not on the party who denies it for a negative is usually of proof. See the following cases; Ofodile v. Onejeme [2021]7NWLR (Pt 1775) 389@423, Paras E-F(SC); Obe v. MTN Nig. Comms. Ltd [2021]18 NWLR (Pt 1809)415@449, Paras A-C (SC); Nteile v. Irawaji [2021]16NWLR (Pt 1803)411(SC) and; Odom v. PDP & Ors [2015] LPELR-24351(SC)1@43-44, Para B. I have perused all the exhibits put forward by the defendant particularly exhibits EKPE 2,3,4,5,6 and I cannot find anywhere in those documents where claimant’s name was mentioned as being involved in any of the allegations made by the defendant. In fact, the documents were all referring to one Rev. Dr. Yakubu Pam who was the former Executive Secretary of the defendant.  The fact that claimant worked with him does not mean that claimant was involved in any financial misappropriation except same is proved.  In fact, DW1 admitted under cross examination that it was not out of place for claimant to have worked for the former Executive Secretary. I do not see any basis for the allegations made against claimant in MAKAI A that claimant was involved in financial misappropriation and was under investigation by the EFCC. In my considered view exhibit MAKAI A is an exhibition of corporate bad-faith, malice, witch-hunting, delinquency and professional wickedness.

61. The other elements that elements that a claimant must prove to be able to succeed in an action for constructive dismissal according to Lord Denning in the case of Western Excavating (ECC) Ltd v. Sharp, supra are the triology of: the employee electing to accept the breach and treat the contract as having ended; resignation of the employee in response to the breach and; no undue delay in the sense that the employee must not delay too much in accepting the breach.

62. The claimant by the facts before the Court and the evidence on record specifically by exhibit MAKAI 13 accepted the series of breaches committed by the defendant and chose to treat the contract as having ended by her letter of resignation which was put in on the 22^nd April, 2024.  In fact, the fourth paragraph of exhibit MAKAI 13 clearly shows that there was an undertone to claimant’s resignation.  It reads thus:

“As per the terms outlined in section 2 (VII) of my employment letter dated 30^th July, 2013, it appears that the provision for one month’s salary in lieu of resignation does not apply in my current situation. I have sought clarification from the Administration Department, and it has been confirmed that my salary has already been discontinued, without any accompanying explanation or query as stipulated in the Public Service Rules (PSR).”

63. The above paragraph clearly shows that there was an undertone to the resignation of claimant. In my view I also feel that the resignation was timeous enough as it is the last straw which broke the Carmel’s back. Looking at  the exhibit MAKAI A the letter written in response to the letter of the Senator requesting claimant’s secondment wherein claimant was wrongly alleged to be involved in financial crimes was just written on the 18^th April 2024. Claimant’s resignation came in on the 22^nd April, 2024. There is therefore no doubt that all the elements of constructive dismissal are present in this case.

64. Let me at this stage say that I bear in mind the fact that learned claimant counsel in his final written address did refer this Court to several of its unreported decisions in paragraphs 4.18, 4.22, 4.27 and 4.28 of the said address. Also, in paragraph 4.46 of the said address, he relied on an unreported decision of the Apex Court in SKYE BANK PLC V. MR. ADEDOKUN OLUSEGUN ADEGUN (Unreported, Suit: SC/406/2018) (Judgment delivered 27th February, 2024). It is not in doubt that a counsel ought to aid the work of the Court by referring the Court to judicial decisions which may help the Court in reaching the justice of the case. However, it is also the duty of Counsel to bring such decisions properly before the Court if he wants the Court to be guided by them. In the case of Ugo Ngadi v. FRN [2018] LPELR-43903(SC)1@22, Para D, the Supreme Court per Galinje, JSC held thus:

“Where a counsel cites a case that has not been reported, he owes the Court a duty to produce a copy of the judgment if he wants this Court to rely on such authority. Where copies of the judgment are not produced, the Court will have nothing to rely upon. The cases are yet to reach this Court, as such I will refrain from commenting on them.”  [Emphasis supplied].

65.Learned counsel in this case did not provide this Court with certified true copies of the unreported decisions of this Court which he relied on and would want the Court to make use of and as such the Court has no benefit of considering the said decisions. It is only right that the Court refrains from commenting on them. In the same vein, learned counsel on behalf of the defendant in his Reply on point of law wrongly cited the case of Miss Ebere Ukoji v. Standard Alliance Life Assurance Co Ltd, supra earlier relied on in this case as “Miss Ebere Ukoji v. Standard Alliance Life Assurance Co Ltd (2024)47 NLLR (PT 154)531” The citation is obviously incorrect as that case was not reported in the year 2024 as cited by learned counsel. In the case of Chidoka & Anor v. First City Finance Ltd [2012] LPELR-9343(SC)1@ 13-14, Para D the Apex Court per Muntaka- Coomassie, J.S.C (of blessed memory) had this to say:

“A counsel who wants the Court to make use of the authorities cited must provide and cite the cases with clarity, i.e. the name of the parties, the year the case was delivered, if it is unreported a certified true copy, where the case has been reported, the name of the law report, the year, volume and the page. To dump authorities on the Court without clear reference, that would not be accepted by this Court…” [Emphasis supplied]

66. The work of a judicial officer is tedious enough for a counsel to add to the already big burden on the Court by giving wrong citation of cases which could send the Court on a wild goose chase. Counsel should ensure to be diligent when next he is citing cases for the Court. That is one of his utmost duty to this Court.

67. It therefore goes without saying that, there is no doubt that claimant’s resignation is a response to the series of repudiatory breaches committed by the defendant in the way she was treated before her resignation. As reasoned above, by decision of this Court in the case of Miss Ebere Ukoji v. Standarad Alliance Life Assurance Co. Ltd (supra): forced resignation may amount to constructive dismissal. Also, the footnote of paragraph 22 of the 1995 General Survey of the ILO Committee of Expert  captured earlier in this case makes it clear that if an employer makes the working conditions of a worker so intolerable that the latter is forced to resign, the employer commits constructive dismissal. It is therefore clear that even though the claimant resigned her employment with the defendant, the defendant’s appalling and humiliating conduct made continuing the employment intolerable for the claimant. It is my respectful view that claimant was left with no option than to act in the manner which she did since the defendant and its Chief Executive were hell bent on disgracing her for the singular fact that she worked with the former Chief Executive. It is in view of the above that I find that relief ‘a’ succeeds.

68. This Court is empowered by Section 254C (1) (f) of the 1999 Constitution as amended to determine issues relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relations matters. In the same vein Section 7 (6) of the National Industrial Court Act, 2006 (hereinafter referred to as “the NICA) is clear that in applying international best practice in labour or industrial relations what amounts to international best practice or unfair labour practice must be proven.  As reasoned earlier though Convention 158 and its Recommendation No 166 have not been ratified by Nigeria, this Court in its jurisdiction under Section 254C (1) (f) and (h) to apply international best practices and international labour standards may nonetheless apply them where the facts giving rise to them have been proven in line with Section 7 (6) of NICA.

69. Employers should be careful not to wield their big stick in oppression and witch-hunting of an employee because no employer is allowed to destroy the name, career and reputation of an employee because the employee worked for someone who the top shots are in disagreement with. If there exist any issue(s) between the current Executive Secretary and the former one, there are legal avenues to address such and not this unorthodox and wicked method of targeting claimant because she worked with the former Executive Secretary. There is no doubt that claimant was being targeted by the defendant because she worked with the former Executive Secretary of the defendant. It is against international labour standards for an employer like the defendant to treat the claimant like it did in this case. The conducts of the defendant against the claimant which necessitated her forced resignation is no doubt an unfair labour practice which this Court in its jurisdiction cannot allow to stand. Accordingly, relief ‘b’ succeeds. I so hold.

70. With respect to relief ‘c’, claimant maintained that the query issued to her after the resignation of her appointment is null and void. According to the claimant in her pleadings, the defendant had no vires to issue her query after she has resigned her appointment. The defendant in its stance maintained that it had the vires to still issue claimant query the way it did because claimant absented herself from duty without proper approval of her leave.

71. It is not in dispute that the claimant resigned her appointment with the defendant vide exhibit MAKAI 13 on the 22^nd April, 2024  and same was acknowledged by the defendant on the same date. It is also not in dispute that the defendant purported to accept the resignation on 26^th April, 2024 vide exhibit MAKAI 14 while by the undisputed facts on record the claimant was issued query on the 23^rd April, 2024. In the case of Osho v. Adeleye [2024]8 NWLR (Pt. 1941)431@454, Paras D-E, 456-459, Paras H-C the Supreme Court held that resignation from employment is by giving the required length of notice or payment in lieu of notice and dates back from the date the notice is received. According to the Court there is absolute power to resign.

72. I bear in mind the fact that parties in this case have argued on the effect of the failure of claimant to pay salary in lieu of notice of resignation as required by the terms of agreement. In fact, the fourth paragraph of claimant’s letter of resignation that is exhibit MAKAI 13 clearly shows that claimant did not pay salary in lieu of notice. However, it must be stated that Lord Denning in Western Excavating (ECC) Ltd v. Sharp, supra held inter alia thus:

“… If he does so, he terminates the contract by reason of the employer’s conduct. He constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must, in either case, be sufficiently serious to entitle him to leave at once” See also Malik v. Bank of Credit and Commerce International SA (In Liquidation) [1997]3All ER.1 and Courtaulds Northern Spinning v. Sibson [1988]1 C.R. 451.” [Emphasis supplied]

73. It is clear from the above dictum of the learned jurist that where an employee chooses to terminate the contract by way of resignation owing to the employer’s conduct, the employee may or may not give notice provided the conduct is one that is so serious to entitle the employee to leave at once. It therefore means that claimant was at liberty to give notice and in this instance where I have held that the conducts of the defendant towards the claimant was reprehensible and appalling, it means claimant could not be faulted for leaving without notice or salary in lieu because she was left with no other option at that time.

74. In any case, the defendant was the first to do a repudiatory breach of the contract between parties from the way it treated claimant and as such cannot at this stage after forcing claimant out be asking the Court to uphold the terms of the contract as to salary in lieu of notice. If the defendant had not treated claimant the way it did, she could have still remained in the employment. The defendant breached the terms of the contract first by treating claimant unfairly and now cannot be asking the Court to uphold the same contract it breached by repudiation. The defendant cannot enjoy the benefit of one month salary in lieu of notice it would have enjoyed had claimant resignation been one that was not induced. It is trite law that equity will not allow a party benefit from its own wrongdoing or mischief. See MTN (Nig) Comm Ltd v. Corporate Comm Inv. Ltd [2019]9 NWLR (Pt. 1678)427@458, Paras E-F; Pali v. Abdu [2019]5 NWLR (Pt. 1665)320@341, Paras C-D; C.D.C (Nig) Ltd SCOA (Nig) Ltd [2007]6 NWLR (Pt. 1030)300@366, Paras D-F and; Ayinke v. Lawal [1994]7 NWLR (Pt. 356)263@282, Para E. All I am trying to say is that the resignation of claimant without notice or salary in lieu in the instance of this case is justifiable.

75. As stated above, the resignation of the claimant without notices or salary in lieu is in order. If that be the case, it means that claimant’s resignation takes effect from the 22^nd of April, 2024 when it was received and not on the 26^th day of April when it was purportedly accepted. This is in line with the decision of the Apex Court in Ibrahim v. Abdallah [2019]17 NWLR (Pt. 1701)293@315, Paras F-G where the Court held that a notice of resignation is effective not from the date of the letter or from the date of the acceptance but from the date the letter is received by the employer.

76. What then is the effect of the query given to claimant after her resignation? In my candid view it is only logical that since claimant resigned her appointment on 22^nd April, 2024, she stopped being an employee of the defendant and since discipline is part of the incidences of employment, the defendant cannot on the 23^rd April, 2024 when it issued query to claimant attempt to discipline her. The Supreme Court in the case of Jombo v. Petroleum Equalization Fund Management Board [2005]14 NWLR (Pt. 945)443 held that it is elementary that an employee cannot be dismissed from an employment that had ceased to exist. In the instant case, query coming after resignation will be a futile exercise as the defendant from the receipt of the resignation letter of claimant on the 22^nd April, 2024 no longer had the vires to discipline claimant. In effect the query issued on 23^rd April is hereby set aside.

77. I am mindful of the argument of learned counsel on behalf of the defendant in his final written address that the query issued to claimant on the 23^rd of April after her resignation enjoys the presumption of regularity. It is trite that the presumption of regularity in favour of official acts in Section 168 (1) of the Evidence Act is a rebuttable presumption.  See Moss v. Kenrow (Nig) Ltd [1992]9 NWLR (Pt. 264)207@222, Paras E-F; Onuzulike v. C.S.D., Anabra State [1992]3 NWLR (Pt. 232)791@810, Paras G-H. This is because the presumption only operates where there is no evidence to the contrary. See Nigerian Air Force v. James [2002]18 NWLR (Pt. 798)295@319, Paras A-G. As reasoned supra the claimant had resigned her appointment on the 22^nd April, 2024 and the resignation becomes effective on that same day which the letter was received and as such the defendant no longer had vires to issue Exhibit MAKAI 15 which is the query. As such, the presumption that should have inured in favour of the said query has been rebutted. As such, relief ‘c’ succeeds.

78. The claimant vide relief ‘d’ is asking for her salary for the month of April 2024.  According to claimant by her pleadings and her uncontroverted evidence her salary for the month of April is N178, 369.50 k. The claimant led evidence to show that she was not paid for the Month of April 2024. The only contention of the defendant to this in its statement of defence particularly vide paragraphs 28-29 thereof is that claimant only worked for 21 days in April and was not entitled to full salary and in fact is indebted to the defendant for one month salary in lieu of notice in line with the contract. The defendant equally contended that it is the Accountant General of the Federation that pays salary through the IPPIS platform.

79. I am mindful of the fact that claimant in paragraph 4 of Exhibit MAKAI 13 clearly stated that she had sought clarifications with the Administration Department and she was told that her salary has been stopped. The claimant’s statement of account that is Exhibit MAKAI 12 clearly showed that claimant has not been paid for the month of April even though she only worked for 21 days.

80. The defendant’s contention that it is the Accountant General of the Federation that stopped claimant’s salary is without substance as it is clear Exhibit MAKAI 13 clearly showed that the Administration Department of the defendant told claimant that her salary has been stopped. I have held that claimant’s failure to give one month’s salary in lieu of notice in the circumstance of this case is not fatal. Although claimant has not worked for the full month but as stated by the defendant she worked for 21 days. It is a settled maxim of equity that equity looks as done that which ought to be done. It is only equitable that claimant having worked for 21 days is entitled to be paid for the month of April, 2024. It is in the light of the above that I find that claimant is entitled to her monthly salary in the sum of N178, 369.50 k.

81. I will take reliefs e, f, and ‘g’ together for the obvious reasons that they are monetary claims which go hand in hand. As rightly submitted by learned defendant counsel in his final written address it is trite that monetary claims are in the realms of special damages which must be specifically pleaded with distinct particularity and strictly proved. See; UBN Plc v. Nwankwo [2019]3NWLR (Pt 1660)474@486, Paras D-E, 487, Paras A-C and; NBC Plc v. Ubani [2014]14NWLR (Pt 1398)421@475,Paras D-E.

82. First is the sum of N86,460 claimed as kilometer allowance. The second one is the sum of N41,252.17 claimed as resettlement allowance while the third is the sum N252,000 claimed as 1^st 28 days allowance. Although I have herein above held that the entitlement of claimant to the above allowances were not disputed by the defendant in its pleadings, it is however noteworthy that claimant in these reliefs is claiming specific sums. These sums are special damages which she ought to have specifically pleaded with distinct particulars of how she came by each of them while also leading credible evidence in support. The claimant is required to provide essential particulars and details of the facts of the special damages suffered and claimed with adequate clarity to enable the other party know precisely, the nature of the claim. The failure to specifically plead each of those sums with distinct particularity of how she came by each of them and to lead credible evidence in support is fatal to her case.

83. Besides, the law is that it is not for an employee to establish what his entitlements and other remunerations are as that appears to be within the domain of the employer, except and until the employee is paid by the Employer, as per their agreement. See the case of Aharanwa v. Peoples Bank of (Nig) ltd & Anor [2018] LPELR-43985(CA)1 @ 31 paras B-D. The claimant in this case without any evidence that she has been paid such amount before cannot rely on her own estimations as to what her 1^st 28 days, kilometer and resettlement allowances should be. More so, in this instance where she neither even specifically pleaded with distinct particularity how she came by the quantum of the sum claimed nor lead any credible evidence in support of the sum claimed. It is in view of the above that I find that claimant has not satisfactorily proven entitlement to each of the sums claimed.  Accordingly, reliefs e, f, and ‘g’ fail.

84. Now to relief ‘h’ on damages for constructive dismissal. I have held above that the resignation of the claimant from the employment of the defendant is one of constructive dismissal; that the way the defendant treated the claimant leading to her resignation is also an unfair labour practice.   This Court by virtue of Section 19 (d) of the NICA is empowered to award substantial damages in deserving cases. The power of this Court to award substantial damages in deserving cases have been sufficiently dealt with in the case of Sahara Energy Resources Ltd v. Oyebola, supra per Ogakwu JCA while relying on Section 19 (d) of NICA. In fact, this Court in the case of Ganiyu Rasak v. Liquid Bulk Limited, Unreported Suit No NICN/PHC/103/2020 which judgment was delivered on the 9^th day of February, 2022 held in paragraph 49 thereof that dismissal of the claimant therein during a ravaging pandemic as a way of punishment for absence from duty is an unfair labor practice and such is actionable and attracts award of damages. Consequently, the Court in that case awarded the sum of N1000,000 as damages for wrongful dismissal associated with acts of unfair labour practice. In the exercise of the powers conferred on this Court by Section 19 (d) of the NICA to award substantial compensatory damages in deserving cases, this Court awards the sum of N5,000,000 as damages to claimant for constructive dismissal from the employment of the defendant. 

85. Now to relief ‘I’ on cost of action. It is a settled position of the law that a successful party in an action unless he/she misconducts himself or herself, is entitled to cost as of right. This position of the law is premised on the principle that cost follow or should follow events, and that a successful party in a litigation is entitled to be indemnified for all the reasonable expenses incurred in the prosecution of the matter up to judgment. See the case of Ezennaka v. C.O.P., Cross River State [2022]18 NWLR (Pt. 1862) 369 @ 420 Paras. D-F SC; Cappa and Dalberto (Nig)Plc v. NDIC [2019] 9 NWLR (Pt. 1780)1 @14 Paras G-H and; Saeby v. Olaogun [1999] 10-12 SC 45@59. It is equally trite that the award or refusal of costs is at the discretion of Court provided it is exercised judicially and judiciously. See the case of Yakubu v. Min Housing & Environment, Bauchi State [2021]12 NWLR (Pt. 1791) 465 CA. I am mindful of the position of both learned counsel in their final written addresses while relying on some old cases that a claim for cost of action is in the realm of special damages that ought to be specifically pleaded and strictly proved which according to him claimant failed to prove. I really must say, that does not represent the true position of the law.  The Supreme Court in the case of Mekwunye v. Emirates Airlines, supra; [2019] LPELR-46553(SC)1@67-73, Para E has held as incorrect the position that cost of action is special damages that ought to be specifically pleaded and strictly proved. In that case the Court per Odili JSC (Rtd) held thus; “…The point has to be made that a successful party to litigation is entitled to be awarded costs except where she misconducts herself… I agree with the appellant that deducing from the foregoing provisions, it is clear that the power conferred on the Court under the legislation in awarding costs is discretionary and not based on pleading of the parties or strict proof before the Court determines whether or not to grant same. It is thus that the Court of Appeal was wrong to have held that the award of cost by the trial Court amounted to granting special damages not proved. The discretion of the trial Court in awarding cost is one which the Court of Appeal ordinarily ought not to interfere with except and unless the award is manifestly excessive or too low...” [Emphasis supplied] It is thus clear that the position of counsel captured above in respect of cost of action is a misconception of the true position of law.

86. The Rules of this Court specifically by Order 55 Rules 1,2,3,4 and 5 empowers this Court to grant costs at its own discretion. In the instant suit, the Claimant has succeeded in most part of her claim and as such should be entitled to cost. There is also nothing on record showing that the claimant has misconducted herself in any way during the course of this action to disentitle her to cost. In fact, claimant in support of her relief for cost of action pleaded in her statement of fact that she did pay counsel to represent her in this action and in support tendered Exhibit MAKAI 16 which is a payment receipt of the sum of N2,000,000.

87. I do not lose sight of the arguments of learned defendant counsel in his final written address as to Exhibit MAKAI 16 as it relates to the address of the law office on the said exhibit vis-à-vis the address of the law office on the processes before the Court. Learned counsel did not dispute that the name of the law office on the receipt is the same as the name of the law office on the processes in the court’s file which name is “LAW CORRIDOR” which name the defendant even captured in their own processes under the address for service.  So, there is no mistake as to the fact that it is the same law office that issued the receipt to the claimant. I am aware that addresses of law offices can change from time to time and that will not affect the identity of the law office.  The argument respectfully is bereft of substance and is discountenanced by the Court. In view of the foregoing, I find that she is entitled to a cost. Having considered the number of processes filed on behalf of claimant in this case and the number of appearances had on her behalf by learned counsel, I award the sum of N1000, 000.00 to the claimant as cost of action. I so hold.

88. The claimant also asked this Court for an award of post judgment interest at the rate of 10% per annum. It is trite that post judgment interest may be awarded even where it was not pleaded because it is statutory and is at the discretion of the Court. See Ifemesia v. Ecobank [2018] LPELR-46589 (CA)1@60-61, Para A-A and; Bank v. Shining Star (Nig) Ltd [2022] LPELR-57076 (CA). However, the Rules of Court regulates the discretion of the Court by setting the rate or percentage at which such post judgment interest may be awarded. In the case of Bolanle v. Access Bank [2015] LPELR-40994(CA)1@26-28, Para B, the Court of Appeal held the power of this Court as the trial Court in that case to grant post judgment interest is statutory and is derived from the National Industrial Court Rules.  This Court is empowered by the provisions of Order 47 Rule 7 of the Rules of this Court to grant post judgment interest at a rate not less than 10% per annum. I therefore exercise my discretion in favour of the claimant. It is in the light of this that I find that relief ‘j’ on post judgment interest succeeds. I so hold.

89. For the avoidance of doubt and the reasons earlier given, I declare and order as follows;

1.      That the forced resignation of claimant by the defendant amounts to constructive dismissal and same is an unfair labour practice.

2.      That the query issued claimant on 23^rd April, 2024 is hereby set aside as null and void and of no effect.

3.      That the claimant is entitled to be paid salary for the month of April 2024 in the sum of N178,369.50K (One hundred and seventy-eight thousand three hundred- and sixty-nine-naira fifty kobo).

4.      That the claim of the claimant for kilometer, resettlement and first 28 days allowances fail.

5.      That the claimant is entitled to the sum of N5,000,000. 00 (Five million naira) as damages for constructive dismissal.

6.      That the claimant is entitled to the sum of N1,000,000. 00 (One million naira) as cost of action

7.      That this judgment is to be complied with within 30 days of the delivery of same failure of which it shall attract 10 % post judgment interest per annum.

Judgment is accordingly entered.

                                                                        Hon Justice E.D. Subilim

                                                                                    Presiding Judge

                                                                                    28/11/2024