MR. ISRAEL DICKSON UFOT V. SHAWSAND MEDICAL CENTRE LTD. (SUIT NO: NICN/PHC/95/2020)
Facts of the Case
The Claimant (Mr. Israel Dickson Ufot) was employed as an accountant in the Defendant organization (Shawsand medical Centre Ltd.). On 13th July 2018, the Claimant resigned from his appointment with the Defendant via a letter of resignation (Exhibit C3) with immediate effect, stating that his resignation was “as a result of the incident of 31st May 2018 that took place in the Shawsand Medical Centre”. The Defendant accepted the resignation by its letter of response dated the same 13th July 2018 (Exhibit C4). A dispute arose on payment of the Claimant’s severance benefits and salary in lieu of notice, given that the Claimant resigned with immediate effect. The resignation, according to him, was further to the advice of a certain Mr. Shawley Coker (the Director and majority shareholder of the Defendant), and as a way of resolving the incident which informed the criminal complaint to the Police over physical assault on the Claimant by a certain Dr. Peter Ewah, the Chief Medical Director of the Defendant. The Claimant asserted further that he was offered an alternative employment in a company related to the Defendant by a letter dated 24th July 2018, but the employment was quickly terminated by the company vide its letter dated 25th September 2018.
In its defence, the Defendant disagreed that the Claimant’s resignation was not voluntary. The Defendant counter-claimed for recovery of payment of the one-month salary in lieu of notice from the Claimant, having resigned without due notice as stipulated in the Terms of Appointment (Exhibit C2). The Defendant equally claimed a refund of monies arising from the audit discovery of double payment of the sum of N57,400 to a contractor, and loss of cash in the sum of N120,000 by a cashier staff under the Claimant’s supervision. The professional fee for defending the suit formed part of the counter-claim by the Defendant.
At the end of the trial, parties proceeded to file and exchange their final written addresses, raising various issues for determination by the court.
Issues for Determination
The issues for determination, as reformulated by the cour,t are:
Given the state of pleadings and evidence led, whether the Claimant proved his claim, particularly if his resignation amounts to constructive dismissal?
Whether the Defendant’s counter-claim have merit?
Arguments
As a preliminary issue, counsel for the Claimant contended that the statement of defence and counter-claim filed by the Defendant are incompetent, having been filed and served out of the time prescribed and without moving the motion on notice for leave of court to regularise same. In view of this, he urged the court to discountenance the processes and deem that the suit is not defended by the Defendant. In response to this, counsel for the Defendant urged the court to shun technicality and regularise the motion, said not to have been moved. In aid of his submission on the need for courts to avoid technical justice, he relied on NISHIZAWA LTD v JETHWANI (1984) LPELR-2037(SC).
Arguing the first issue, counsel for the Claimant maintained that his resignation was not voluntary, and the Defendant refused to pay him his outstanding remunerations as contained in his contract of employment. He posited that his resignation was induced by the incident of the assault on him by the Chief Medical Officer at the workplace, which led to police intervention and his eventual constructive dismissal. To buttress his assertion about the physical injury from the attack on him, the Claimant tendered photographs of the injury and a police medical report. The reason for his resignation in Exhibit C3 was also stated to be as a result of the incident of 31st May 2018 that took place in the Shawsand Medical Centre. In response, the Defendant denied the assertion about physical attack, by way of general traverse. The Defendant submitted that the Claimant’s resignation was voluntary as it was with immediate effect, contrary to the requirement for a one-month notice or payment in lieu of notice.
Court’s Judgement and Rationale
The National Industrial Court, sitting in Owerri, per Justice N.C.S. Ogbuanya, in deciding the preliminary issue, relied on the provisions of Order 5 rule 5(1) of the rules of the court, to the effect that “failure to comply with any of these rules may be treated as an irregularity and court may give any discretion as it thinks fit”, the court thereby treated the “unmoved” motion as an irregularity. The statement of defence and counterclaim were accordingly regularised and deemed proper in the record of the court.
On the first issue, the court found that the Defendant failed to specifically deny the assertion of physical attack on the Claimant, but adopted a general traverse defence, leaving the court to determine if the Claimant established his assertion. On the legal effect of defence laced with “general traverse”, the Supreme Court held in NDUKWE v OJIAKOR (2013) 8 NWLR (PT. 1356) SC 311 AT 337-339, that where a Defendant makes a general traverse in his pleadings and fails to give evidence on his case as disclosed in his pleadings or fails to challenge the evidence of his adversary or opposing party, he is deemed to have accepted the evidence of the opposing party notwithstanding the general traverse. Thus, the court believed the assertion of the Claimant regarding the circumstances of his resignation.
Regarding the question of voluntariness of the Claimant’s resignation, the court found that the stance of the labour law is to the effect that tendering of resignation brings the employment relationship to an end, being a recognised exit pathway in employment relationships, and even acceptance of the resignation by the employer is not a pre-condition for validity of resignation. Another feature of valid resignation is voluntariness. Resignation must be voluntary and not tainted with any under-current pressure of force or persuasion. Where a resignation is found to be induced by force of pressure or persuasion or borne out of disclosed extraneous factor independent of the employee’s exercise of his/her free direct will to leave the employment, such interference renders the resignation involuntary, and thus converts it to “Constructive Dismissal” – “Forced Resignation” anchored on the authority of CBN v ARIBO (2018) NWLR (PT. 1608) 130SC. On the guiding principle for ascertaining evidence of forced resignation in employment relationship, the court held that the first port of call is the letter of resignation, which must be examined to see whether there is anything therein which raises red flag about its voluntariness. His Lordship found that Exhibit C, in this instance, discharged the burden on the Claimant and established that his resignation was not voluntary. His resignation amounts to constructive dismissal.
Deciding whether the Claimant proved the reliefs claimed, reliefs one and two relate to his entitlement to terminal benefit, which the parties are ad idem on. However, while the Claimant pleaded and led evidence on entitlement to the sum of N225,797.11 as accrued salary and terminal benefit, the Defendant set up a defence of Set-off and counter-claimed to recover the sum of N264,854.05 as due to it from the Claimant. The court examined the computation of the amount due to the Claimant by the Defendant and found that the salary was computed on the eight days which the Defendant worked for, before accepting his resignation without reservations. The court found that this acceptance without reservation foreclosed raising any further controversy or outstanding disciplinary issue or unliquidated money claim for refund from the Claimant. Thus, the only aspect due for litigation is the recovery of the entitlement, which is to be computed in accordance with legal principles guiding the subject matter. On the issue of calculation of amount due as accrued salary based on number of days worked for, the court relied on earlier decisions of the court to hold that pro rata payment of salary is not applicable to workers in periodic employment, but only applicable to daily paid workers – ABE ADEWUNMI BABALOLA v EQUINOX INT’L RESOURCES LTD (SUIT NO. NICN/166/2015) judgement delivered on 17th June 2020, per Ogbuanya, J. Given the above, the court found that the resignation amounts to constructive dismissal and recalculated the amount payable to the Claimant. Aside the sum N225,797.11 calculated by parties as the Claimant’s terminal benefits, the court also awarded the sum of N95,000.00 being the Claimant’s full salary for the exiting month of July 2018, less the refund of the sum of N20,000.00. being unreceipted cash refunded by the cashier as stolen cash.
Regarding the claim for pre-judgment and post-judgment interests, the court found that pre-judgment interest ranks as special damages which must be specifically pleaded and proved. The Claimant failed to provide sufficient evidence in this regard. On relief three for costs of litigation, the court invoked the provisions of Order 55 rules 1, 4 & 5 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 to hold that cost follows event, and awarded the sum of N250,000.00 in favour of the Claimant against the Defendant.
Deciding the Counter-claim, the court found that premised on the outcome of the resolution of issue one regarding voluntariness of the Claimant’s resignation, the counter-claim lacks the foundation to be sustained.
Claims allowed in part; Counter-claim dismissed.
Representation:
U. Oduyemi, Esq., with G.O. Uzowara, Esq. and E. Asak, Esq. for the Claimant.
O.U. Nwanya, Esq. and C. Oguzie, Esq. for the Defendant.
Reported by Optimum Publishers Limited
Publishers of the Nigerian Monthly Law Reports (NMLR)
(An affiliate of Babalakin & Co.)
