IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON THURSDAY 12TH OF MAY, 2022
BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI
SUIT NO: NICN/KD/06/2015
MR. LIYI VICTOR…………….………………….... CLAIMANT
1. MR. DOLAPO AJAYI
2. SOLO PHONE NIGERIA LTD …………………. DEFENDANTS
J U D G E M E N T
This suit has a chequered history. On record, it is the oldest case pending before this Court as at date. It was instituted by the Claimant on 06/07/2015. As borne out by the records, this case was commenced by His lordship, Late Hon. Justice Lawal Mani (of blessed memory); and was started de novo on 10/10/2018. The proceedings in the suit had been plagued by unending objections, attempts by parties to settle out of court and countless applications for adjournments, which the Court had to accommodate in the overstretched interest of justice that “covers all sins!”. I should also remark that this judgement was initially slated for 3rd of May, 2022 but the day was declared as public holiday and was further adjourned till today.
2. The Claimant was employed as the Acting Regional Manager (North) of the 2nd Defendant. His grouse is that the Defendants refused to pay his operational allowances and also failed to remit the money deducted from his salary as pension to his pension administrator. The Claimant further alleged that the termination of his appointment by the Defendant after he had tendered his letter of resignation was wrongful.
On the basis of this essential facts, the Claimant took out a Complaint and Statement of Facts against the Defendants on 06/07/2015, and by the operative Amended Complaint and Statement of Facts filed with the leave of Court on 20/12/2016, his claims against the Defendants are set out as follows:
1. A Declaration that the Claimant is entitled to a refund of the sum of
N52,000.00 (Fifty-Two Thousand Naira) deducted from his monthly salary for a period of 7 (Seven) months amounting to the sum of N364,000.00 (Three Hundred and Sixty-Four Thousand Naira) only on the basis of the contract transferring ownership of the official car to him after 3 (three) working years.
2. A Declaration that the non-payment of the Claimant’s operational allowances by the 1st and 2nd Defendants for a period of Seven (7) months amounting to the sum of
N210,000.00 (Two Hundred and Ten Thousand Naira) only for no justifiable reason constitutes a breach of Contract.
3. A Declaration that the 1st and 2nd Defendants’ decision to determine the Claimant’s contract of employment on the basis of the outcome of an investigation carried out with respect to the Claimant’s conduct and activities without giving him an opportunity to make his representation and after having received his letter of resignation constitutes an infraction of his right to fair hearing as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
4. A Declaration that the 1st and 2nd Defendants’ decision to determine the Claimant’s contract of employment after having received his letter of resignation is null and void and of no effect.
5. An Order directing the 1st and 2nd Defendants to refund unto the Claimant the sum of
N364,000.00 (Three Hundred and Sixty-Four Thousand Naira) only being the cumulative sum of N52,000.00 (Fifty- Two Thousand Naira) deducted from his monthly salary for a period of 7 (Seven) months on the basis of the contract transferring ownership of the official car to him after 3 (Three) working years.
6. A Declaration that the Claimant is entitled to a refund of the cumulative sums of the monies which the 1st and 2nd Defendants deducted from his monthly emoluments at the rate of 7.5% of the sum of
N270,000.00 (Two Hundred and Seventy Thousand Naira) monthly emoluments totaling N243,000.00 (Two Hundred and Forty - Three Thousand Naira) towards the compulsory Contributory Pension Scheme under the Pensions Reforms Act 2014, L.F.N. up to the date of the Claimant’s resignation.
7. An Order directing the 1st and 2nd Defendants to refund unto the Claimant the sum of
N210,000.00 (Two Hundred and Ten Thousand Naira) owed him as operational allowances while being engaged in the employment of the 1st and 2nd Defendants.
8. An Order directing the 1st and 2nd Defendants to refund unto the Claimant the cumulative sums of the monies deducted from his monthly emoluments at the rate of 7.5% of the sum of
N270,000.00 (Two Hundred and Seventy Thousand Naira) monthly emoluments totaling N243,000.00 (Two Hundred and Forty-Three Thousand Naira) towards the compulsory Contributory Pension Scheme under the Pensions Reforms Act 2014, L.F.N. up to the date of the Claimant’s resignation.
9. An Order directing the 1st and 2nd Defendants to remit into the Claimant’s account the 7.5% of the sum of
N270,000.00 (Two Hundred and Seventy Thousand Naira) monthly emoluments totaling N243,000.00 (Two Hundred and Forty-Three Thousand Naira) towards the compulsory Contributory Pension Scheme under the Pensions Reforms Act 2014, L.F.N. up to the date of the Claimant’s resignation.
10. Award of general damages in the sum of Ten Million Naira (
N10,000,000.00) against the 1st and 2nd Defendants jointly and severally in favor of the Claimant for the breach of the Contract of Employment between them.
11. 10% interest on the judgment sum from the date of judgment until the judgment debt is fully and finally liquidated.
12. Cost of filing this suit.
3. The Defendants’ defence to the action is encapsulated in the Amended Joint Statement of Defence filed on 11/10/2019 to which a Counter-Claim was subjoined. The Defendants admitted owing four months out of the seven months being claimed by the Claimant as operational allowances. The Defendants also admitted Claimant’s claim for non-remittance of the sum of money deducted from his salary as contributory pension and promised to remit same to the Claimant’s Pensions Fund Administrator.
The Defendants, however maintained that the appointment of the Claimant was properly terminated. The Defendants further contended that despite having terminated the Claimant’s appointment, he refused to return the facilities given to him to carry out his official duties, especially the 2nd Defendant’s Toyota Camry car with Registration Number: LAGOS EPE 235CP.
4. Whereof, the Defendants Counter-Claimed against the Claimant as follows:
1. An Order of this Honourable Court compelling the Claimant to return and hand over to the 2nd Defendant possession of its Toyota Camry car with Registration Number: LAGOS EPE 235CP in his possession, in good and functional condition, or if damaged, its market value.
The Claimant filed a Reply to the Amended Joint Statement of Defence and Defence to Counter-Claim on 10/02/2017.
5. At the plenary trial, the Claimant testified in person by adopting his written depositions. He further successfully tendered ten (10) documents in evidence, whilst the Defendants’ learned counsel subjected him to cross-examination.
As I had earlier noted, the Defendants filed a Joint Statement of Defence and a Counter-Claim, but elected to rest their case on that of the Claimant.
At the close of plenary trial, parties were ordered by the Court to file their written addresses as prescribed by the provisions of Order 45 of the Rules of this Court.
6. In the Claimant’s final address settled by E. N. Ogbu Esq., of counsel, two issues were identified as having arisen for determination in this suit, that is:
1. “Whether the Claimant has proved his case on the balance of probabilities to be entitled to judgement?
2. “Whether the Defendants/Counter-Claimants have proved their case on the balance of probabilities to be entitled to judgement?
The sole issue as identified in the final address deemed filed on behalf of the Defendants on 12/01/2022 by its learned counsel, Kabir Momoh, Esq., is:
“Whether having regards to the facts and circumstances of this case and the evidence adduced before this Honourable Court, the Claimant is entitled to the reliefs sought?
The Claimant’s Reply on Points of Law to the Defendants’ written address was filed on 02/02/2022.
It is imperative to state at this juncture, that the Defendants’ Counter-Claim was withdrawn by learned counsel in his written address. In the circumstances, therefore, pursuant to Order 61 Rule 7 of the Rules of this Court, the Defendants’ Counter-Claim is hereby accordingly dismissed.
7. I have painstakingly examined the totality of the pleadings filed by both parties in contention; the reliefs claimed, the totality of the admissible and relevant evidence adduced at the trial; and the totality of the written addresses and oral summations of learned gentlemen for the two parties; and my view is that two issues call for determination in this suit. Without prejudice to the other issues formulated for determination by the respective learned counsel, I shall proceed to determine this suit on the basis of the issues set out as follows:
1. Whether having regards to the conjunction of circumstances and events in this case, the Defendants wrongfully terminated the Claimant’s employment.
2. Whether the Claimant has proved his case to entitle him to the declaratory reliefs and other claims.
In proceeding to determine these issues, I had taken due benefits of the totality of the arguments canvassed by the respective learned counsel on either side in the written submissions, to which I shall endeavor to make specific reference as I deem needful in the course of this judgment.
ISSUES ONE & TWO:
8. I now proceed to determine both issues together.
The case of the Claimant is simple and clear. He was employed by the 2nd Defendant as the Acting Regional Manager (North) on 13/05/2014. The Claimant testified that his operational allowances were stopped after he had worked with the Defendants for five months and that the Defendants failed to pay the said outstanding allowances in spite of the several assurances made by the Head of Human Resources of the 2nd Defendant. The Claimant testified further that upon inquiries he made to his pension administrator, he discovered that the Defendants had failed to remit the deduction of 7.5% of his monthly emoluments towards the compulsory contribution of his pension.
It is the Claimant’s further testimony that he made a formal complaint to the Head, Human Resources about the non-payment of his operational allowances for seven (7) months; that on 26/05/2015, he received a call from the 1st Defendant for a meeting at Abuja; that due to fuel scarcity and because he suspected that the meeting was to recover the official car, he travelled to Abuja for the meeting without the official car, whilst he instructed the driver of the official car to park the car.
9. The Claimant further testified that due to the unfair treatment meted to him by the Defendants, he resigned his appointment by a letter of resignation dated 27/05/2015 and made a hand over note dated 29/05/2015; that the Defendants had deducted a monthly sum of Fifty-Two Thousand Naira (N52,000) for seven months for the purpose of transferring the ownership of the car to him; that he lodged complaints at the Police Station both in Abuja and Kaduna and that he deposited the official car at the Barnarwa Police Station. The Claimant further alleged that contrary to the terms of his employment as stated in the Defendant’s Handbook, he was not given the opportunity to defend himself in a purported investigation on allegation of his conducts and that he has suffered psychological, emotional and trauma by the actions of the Defendants.
The following documents were admitted to establish the Claimant’s case, namely: letter of appointment and photocopy of identity card, Claimant’s statement of account with Eco Bank, Claimant’s statement of account with Stanbic IBTC Pension Managers, Claimant’s statement at Barnawa Police Station, emails with letter of termination of appointment and summary of receivable report for North Central as attachments, Claimant’s letter of resignation and email correspondences between the Claimant and Defendants as Exhibits C1 and C1A, Exhibit C2, Exhibit C3, Exhibit C4, Exhibits C5, C5A, C5B, C5C and C5D respectively.
10. As I had earlier noted, the Defendants did not adduce evidence in support of the defence but rested their case on that of the Claimant’s. It is the law that where a Defendant does not adduce evidence, the evidence before the Court goes one way leaving the Court with no other evidence or set of facts with which to do the measuring of the scale. And in a situation as the present case, where a Defendant abandons his pleading and rests his case on the Claimant's evidence, he is deemed in law to have completely accepted both the pleadings and evidence or the case presented by the Claimant.
11. It is considered pertinent to also advert to the fact that the Claimant has sought declaratory reliefs in this suit. As correctly submitted by learned Defendants’ counsel, the implication is that the burden for him to prove the allegations leveled against the Defendants exceeds the regular burden provided in Sections 131 and 132 of the Evidence Act 2011. The settled position of the law, from time immemorial, is that even though the power to make a binding declaration of right is discretionary in nature; a Court would only grant declaratory reliefs sought in an action principally on the basis of the evidence adduced by the Claimant without recourse to the evidence called by the Defendant. The burden of proof on the Claimant in establishing a declaratory relief to the satisfaction of the Court is somewhat heavy, in the sense that such relief is not granted even on the admission of the Defendant, as the Claimant must lead credible evidence in proof of the declaration of right he seeks from the Court. An exception to the rule of pleadings that what has been admitted requires no further proof is that a declaratory relief cannot be granted without evidence; and it is not granted based merely on default of defence or on admission by the adverse party. See the authorities of Adama Vs Kogi State House of Assembly  16 NWLR (Pt 1699) 501; Emeka Vs Chuba-Ikpeazu  15 NWLR (Pt 1589) 345; Ndayako Vs Dantoro  13 NWLR (Pt 889) 187; Olabanji Vs Omokewu  7 SCNJ 266.
12. The task the Court is to undertake now is to examine the evidence on record as adduced by the Claimant; and the law applicable thereto, in order to determine whether or not such evidence has satisfied the requirement of proof imposed by the provisions of Sections 131 and 132 of the Evidence Act (as amended), to substantiate the Claimant’s declaratory reliefs and other claims as endorsed in paragraph 36 of his Amended Statement of Facts.
Parties are not in disagreement that the relationship between the Claimant and the 2nd Defendant that resulted in the institution of the instant suit is contractual in nature. In this regard, the Claimant led evidence that there was a binding employment agreement between the parties and tendered in evidence as Exhibit C1; the copy of the employment contract.
13. Now, the Claimant alleged that while in the employment of the 2nd Defendant, he was being owed operational allowances for a period of seven months. According to the Claimant, his operational allowances was stopped by the Defendants after he had worked for a period of five months and that the Defendants refused to pay the said allowances in spite of the several promises made by the Head, Human Resources of the 2nd Defendant.
The admission of the Defendants in paragraph 4 of the Amended Statement of Defence, is that the Claimant is owed four (4) months operational allowances, for the months of February 2015 – May 2015 and not for seven months as alleged by the Claimant. Learned counsel for the Defendants’ submission is that the Claimant failed to prove the remaining three months purportedly owed by the Defendants.
14. The settled position of law with statutory backing and a legion of decided authorities is that what is admitted needs no further proof. By Section 123 of the Evidence Act 2011, no fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings; provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. By this provision, generally in civil proceedings, unless a Court deems it fit as provided for in the proviso to call for further evidence, what is admitted requires no further proof other than by such admission. There are too many cases on this principle. See Akinlagun Vs Oshoboja  12 NWLR (Pt 993) 60;  5 SC (Pt 11) 100. In Ojukwu Vs Onwudiwe & Ors  2 SC 15 at 38, the Supreme Court, per Aniagolu JSC (as he then was), put the principle succinctly when he held as follows:
“Another principle deeply enshrined in our jurisprudence is that admissions made do not require to be proved for the simple reason, among others that 'out of the abundance of the heart the mouth speaketh' and that no better proof is required than that which an adversary wholly and voluntarily owns up."
15. Having regard therefore, to the Defendants’ unequivocal admission in paragraphs 4 and 10 of the Amended Statement of Defence of their liabilities to the Claimant of his entitlement to four months’ operational allowances at the rate of Thirty Thousand Naira per month; the non-remittance of the money deducted from the Claimant’s salary to his PFA as proved in Exhibit C3 and the willingness of Defendants to remit same to the Claimant’s Fund Administrator as required by the Pensions Reforms Act 2014, I must state that the Claimant is entitled to the claims admitted by the Defendants. And I so hold.
16. The further argument of the learned Claimant’s counsel is that the Defendants made admission against their interests in that having partly admitted that they owed the Claimant three months out of the seven months allowance being claimed, the Defendants’ failed to adduce oral evidence to defend the remaining sum being claimed. Learned counsel argued that by Exhibit C2, Claimant’s Eco Bank Statement of Account, the Claimant was paid the same amount as salaries for the months of November 2014, December 2014 and February 2015 - May 2015; that from the said exhibit, the salaries paid to the Claimant for the months listed is consistent and it is therefore deducible or can be inferred, that the Defendants owed the Claimant for his operational allowances for seven months.
17. It appears to me that these arguments are being raised by learned Claimant’s counsel in his address. It is trite and elementary to restate that address of counsel, no matter how brilliant, how eloquent, how erudite or articulate cannot take the place of evidence. The address of counsel which is only intended to assist the Court cannot be in vacuum or suspended in the air, but must be placed on pleadings or evidence to shore it. In other words, address of counsel, not based on pleadings and evidence is inconsequential and goes to no issue. It has no probative value and not worth a dine in the scale of evidence for consideration by the Court. See BFI Group Corporation Vs Bureau of Public Enterprise  18 NWLR (Pt 1332) 209; Hamidu & Anor Vs Kaduna Electricity Distribution Co  LPELR 48281.
My finding is that the Claimant has the onus to prove that the Defendants owed him the sum of Two Hundred and Ten Thousand Naira (N210,000.00) as seven months’ operational allowance as against the sum of One Hundred and Twenty Thousand Naira (N120,000.00) being four months operational allowance as admitted by the Defendants. The Claimant failed to discharge the burden. And I so further hold.
18. It is the Claimant’s further contention that the Defendants deducted the total sum of Three Hundred and Sixty-Four Thousand Naira (N364,000.00) at the monthly rate of Fifty-Two Thousand Naira (N52,000.00) for seven months on the basis of contract of transferring ownership of the official car to him after three (3) working years.
Citing the cases of Oforishe Vs Nigerian Gas Co Ltd  2 NWLR (Pt 1602); Olanrenwaju Vs Afribank (Nig) Plc  13 NWLR (Pt 731) 691; Layade Vs Panalpina  6 NWLR (Pt 456) 544, learned Defendants’ counsel submitted that parties are bound by the express and clear terms embodied in the contract of employment and that no extrinsic fact would be admissible in evidence to add to, vary or subtract from such contract
Learned counsel further argued that Exhibit C1, the terms and conditions of service that regulated the relationship between the Claimant and the 1st Defendant has no provision that monthly deductions will be made from the Claimant’s salary to transfer the ownership of the 1st Defendant’s car to Claimant; that Clause (i) of Exhibit C1 is clear and admits no ambiguity and that any purported representation by the 2nd Defendant cannot vary the written and clear terms of contract agreed by parties.
19. On his part, learned Claimant’s counsel argued that the Defendants are bound by the admission made by the 1st Defendant on behalf of the 2nd Defendant and cannot turn around to deny that the representation made by the 1st Defendant or that Exhibit C1 does not form part of the agreement by parties. The cases of Ayanlaja Vs Olukoya  4 NWLR (Pt 440) 1; Cappa & D’Alberto Ltd Vs Akintilo  9 NWLR (Pt 824) 49 in support of his propositions.
20. Now, as correctly submitted by learned counsel for the Defendants, it is an elementary principle of contract and indeed well settled that parties are generally bound by the terms and or conditions of an agreement which they voluntarily entered into. It is also trite that the Courts are bound by the terms of an agreement which parties before it have freely and validly executed. Thus, if a Court is called upon to construe an agreement, the Court cannot but limit itself to the express terms of the agreement as indicated and/or specified by the parties. This is because where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add, vary, subtract from or contradict the written terms of the contract or agreement. Therefore, where a Court is faced with the task of interpreting a written instruction or agreement from one party to the other or between two or more parties (as the case may be), it is expected that it will carry out its duty within the walls or confines of the written and express terms of the instruction or agreement. See the cases of Babatunde & Anor Vs Bank of North Ltd & Ors  LPELR 8249(SC); Chukwu & Anor Vs Chukwu & Ors  LPELR 4548.
21. In view of its crucial relevance to the determination of the issue at hand, I have taken liberty to reproduce Clause (i) of Exhibit C1 which relates to terms on transportation.
Clause (i) states:
“You will be entitled to the use of a company pool car that is consistent with Solo’s brand and values for business use only during office hours as approved by the logistics manager. Pending the provision of the company pool car, all transportation expenses incurred in the course of performing your duties at Solo Phone will be fully reimbursed on production of valid receipts.”
22. The above reproduced clause is clear and without ambiguity. There is no gainsaying that parties in the instant case are bound by the terms of the agreement they freely entered into. The further testimony of the Claimant in relation to his claim for refund of the purported deduction of the sum of N52,000.00 for a period of seven months is stated in paragraph 25 of the Amended Statement of Facts as follows:
“That the 1st and 2nd Defendants have been deducting the sum of N52, 000.00 (Fifty-Two Thousand Naira) from my monthly salary for a period of 7 (seven) months amount (sic) to N364,000.00 (Three Hundred and Sixty-Four Thousand Naira) only on the basis of transferring ownership of the official vehicle to me when I demanded in writing why the said sums are being deducted, the 1st Defendant responded in writing urging me to be rest assured that the vehicle will be transferred to me. The letter dated November, 27, 2014 is hereby tendered in evidence. “
23. Exhibit C5B, is the correspondence of 27/11/2014 between the Claimant and the 2nd Defendant via electronic mail on the subject matter. In response to the Claimant’s request for reimbursement of expenses and to further clarify on the purported deduction of N52,000.00 from his monthly salary, the 2nd Defendant in the exhibit stated that:
“I believe we have resolved this issue. I have instructed account to reimburse you. On the 52,000 monthly deduction, HR will send you official letter stating the amount (sic) will be deducted from your monthly salary for 3 years working for the company after which the official car will become yours.” (Underlining for emphasis).
From the above, an official letter stating the amount is to be issued by the Defendant stating the amount to be deducted from monthly salary for the car. The burden is on the Claimant to place the said official letter stating the amount to be deducted before the Court to prove that the 1st Defendant carried out the deductions. My finding is that the Claimant did not discharge the burden placed on him. In the circumstances therefore, the Claimant is not entitled to N364,000.00 as claimed. And I so hold.
24. The further contention of the Claimant is that the purported termination of his appointment after he had resigned from the 2nd Defendant is breach of contract and wrongful. The Claimant testified that after he had sent in his letter of resignation on 27/05/2015, he equally sent his handing over notes on 29/05/2015 and that he was not given the opportunity to defend himself when his appointment was unilaterally terminated by a letter back dated 26/05/2015 but originally sent on 28/05/2015. The letter of resignation dated 27/05/2015 and Hand over notes dated 29/05/2015 are contained in Exhibit C5A, whilst Exhibit C5 is the letter of termination of appointment dated 26/05/2015 sent via email of 28/05/2015.
25. It is the submission of learned Defendants’ counsel that the relationship between the Claimant and the 1st Defendant was that of master/servant solely regulated by the terms stipulated in Exhibit C1, which states inter-alia that the 1st Defendant reserves the right to terminate the Claimant’s appointment at any time without notice or payment in lieu of notice for good cause.
In reaction to the submission of the Defendants’ counsel, learned Claimant’s counsel relying on the case of West African Examination Council Vs Oshionebo  12 NWLR (Pt 994) 258, submitted that a notice of resignation is effective, not from the date of the letter or from the date of acceptance, but from the date the letter was received by the employer or his agent.
26. Now, the law is that an employee has an unfettered right to leave an employment when he likes and the employer cannot stop him. The employer cannot even reject the resignation of an employee. To do so approximates to turning the employee’s work to forced labor contrary to Section 34(1)(c) of the 1999 Constitution and Section 73(1) of the Labour Act. This stance is supported by the ILO Convention Concerning Forced or Compulsory Labour, 1930 (No. 29) otherwise called, the Forced Labour Convention.
See also Yesufu Vs Governor, Edo State  13 NWLR (Pt 731) 517 SC, where it was held that a notice of resignation of an appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed. This is because there is absolute power to resign and no discretion to refuse to accept; and it is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted. See also West African Examination Council Vs Oshionebo (supra) cited by learned Claimant’s counsel.
In the instant case, the Claimant had the unfettered right to resign as he did on 27/05/2015 vide Exhibit C5A, which was received on same day. The Claimant’s resignation thus became effective on 27/05/2015. And I hold.
27. The Defendants’ letter of termination of appointment though dated 26/05/2015 was sent via email dated 28/05/2015, a day after the Claimant had given notice of resignation his appointment. This being so, the Defendants had no right whatsoever to treat the Claimant’s employment as subsisting. There was no subsisting employment for the purported investigation by the Defendants, to discipline and to terminate the Claimant’s appointment as the Defendants seem to have done vide Exhibit C5.
In Jombo Vs PEFMB,  14 NWLR (Pt 945) 443, the Apex Court held that it is elementary that an employee cannot be dismissed from an employment that had ceased to exist. Therefore, a termination of appointment coming after the resignation of appointment would be futile exercise. In a number of decisions, this Court applied this position of the law. The cases are:
• Ifechuwude Adigwe Vs FBN Mortgages Ltd [Unreported Suit No: NICN/LA/526/2016, delivered on 9th July, 2019;
• Olumide Seye Otusote Vs National Union of Hotels and Personal Services Workers [Unreported Suit No: NICN/LA/126/2014, delivered on 9th October 2018;
• Kelvin Nwaigwe Vs Fidelity Bank Plc [Unreported Suit No: NICN/LA/85/2014, delivered on 24th January 2017;
28. As I had earlier held, after 27th May, 2015, the Claimant was no longer in the 1st Defendant’s employment and so his employment can no longer be terminated. The letter of resignation of the Claimant’s appointment on 27th May, 2015 vide Exhibit C5 became effective on the same day. Accordingly, the purported termination of the Claimant's employment vide Exhibit C5 is null and void. And I so hold.
Perhaps, I should further remark that the Claimant is disentitled to the payment of any benefit except for earned salary and allowances from the effective date. This was the position of the Court in Dr. Dave Nwabor Vs Oilflow Services Limited [Unreported Suit No: NICN/LA/552/2015, delivered on 10th July 2017. See also WAEC Vs Oshionebo (supra).
29. I will now determine the alternative claims as stated in paragraphs 9 – 12 of the Amended Statement of Facts. Paragraph 9 of the alternative claim is the same as paragraph 8 of the main claim.
The law is that, where an alternative claim is made in addition to a main claim, it is only when the main claim has not been granted that the consideration and the granting of the alternative claim can arise. In other words, both the main claim and the alternative claim cannot at the same time be granted. Or to put it differently, alternative claim is a separate claim and a separate award. One can only obtain one or the other, not both at the same time. The law does not work that way.
See the cases of Alao Vs Adenola  3 NWLR (Pt 913) 630; Gaji & Ors Vs Paye  5 SCNJ 20; Chief Yesufu & Anor Vs Kupper International N. V  4 SCNJ 40
Having being granted the sum of N243,000.00 admitted by the Defendants as money deducted from the Claimant’s monthly salary, the Court cannot grant the alternative claim at the same time. And I so hold.
30. It is considered pertinent at this juncture, to restate the time- honored cardinal principle of the judicial process, that the relief sought by a Claimant in an action is fundamental to the fate of that action. Indeed, the relief sought is the bedrock and life wire of an action. See Joe Golday Co Ltd Vs C. D. B. Plc  FWLR (Pt 153) 376; Neka B. B. B. Manufacturing Co Ltd Vs A. C. B. Ltd  All FWLR (Pt. 198) 1175.
The settled position of law is that the claims for general damages, interest and cost of action are made at the discretion of the Court. In my respectful view, the main claims having been partly granted, I do not think these claims can be made in the alternative. Accordingly, the claims for general damages, interest and costs fail. And I so further hold.
In totality, the Court adjudges the claim of the Claimant as meritorious in part. For avoidance of doubts and abundance of clarity, judgment is hereby entered in favor of the Claimant in part, against the Defendants upon the terms set out as follows:
1. It is hereby declared that the Defendants’ decision to terminate the Claimant’s contract of employment after his letter of resignation was received is null and void and of no effect.
2. The Defendants are hereby ordered to pay to the Claimant forthwith the sum of One Hundred and Twenty Thousand Naira (N120,000.00) being four months operational allowances owed while the Claimant was in the 1st Defendant’s employment.
3. The Defendants are further ordered to remit to Stanbic IBTC Pensions Managers, the Claimant’s Pension Administrator, the sum of Two Hundred and Forty – Three Thousand Naira (N243,000.00) deducted from Claimant’s salary as his contributory pension.
4. It is hereby also ordered that the Defendants shall pay to the Claimant and remit to the said Claimant’s Pension Fund Administrator the sums set out in (2) and (3) above within thirty (30) days to the Claimant.
5. Parties shall bear their respective costs.
SINMISOLA O. ADENIYI
E. N. Ogbu Esq. for Claimant
Kabir Momoh Esq. for Defendants