IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

 

DATED 30^th JUNE 2026                                                                

 Suit No: NICN/LA/22/2024

 

BETWEEN

 

MR EITHEL EFFIANG CHU YEH MBUNKUR                                        CLAIMANT

 

AND

 

BRITISH AMERICAN TOBACCO MARKETING (NIG) LTD               DEFENDANT       

 

REPRESENTATION:

Oluwole Kehinde for the Claimant

Agba Eimunjeze with Blossom Adebomi and Idowu Babatunde for the Defendant

 

JUDGMENT

 

By a general form of complaint filed on the 6^th June, 2024 the claimant claimed the following reliefs against the defendant:

 

1.      A Declaration that the termination of employment of the Claimant by the Defendant based on the alleged background check conducted on the Claimant by the Defendant is wrongful as the said background check and termination of employment of the Claimant are against best labour and employment traditions, conventions, and best practices.

 

2.      A Declaration that by the International labour standards established by the International Labour Organization (ILO), the Defendant has a duty to prove the reason given for terminating the appointment of the Claimant.

 

3.      An Order directing the Defendant to forthwith release to the Claimant the content of the alleged background check it conducted on the Claimant which informed the decision of the Defendant to wrongfully terminate the employment of the Claimant.

 

4.      The sum of N350,000,000.00 (Three Hundred and Fifty Million Naira only) being compensation for the wrongful and unlawful termination of the employment of the Claimant by the Defendant.

 

5.      Interest on the said sum of N350,000,000.00 Three Hundred and Fifty Million Naira only) from the date of judgment until the final liquidation of the judgment sum.

 

 

Accompanying the complaint are statement of facts, written statement on oath, list of witnesses, documents to be relied upon on trial dated 1^st February, 2024 but filed 6^th February, 2024.

 

The defendant filed its statement of defense in paragraphs 1-16, with witness written statement on oath and documents to be relied upon at trial dated and filed 27^th April, 2024.

 

The Claimant’s Reply to the defendant’s Statement of Defence is dated and filed 13^th November, 2024.

 

The facts of the claimant’s case are that he is a Procurement Manager based at No. 11, Rue de la Mosquee, Cite des Palrniers, Douala, resident in Cameroon, Central Africa; that sometime in November, 2018, he applied for the Defendant's position number 10315 for the role of Associate Manager for Procurement and that by a mail dated 21^st November, 2018, the defendant invited him for an interview on Friday, 23, 2028 and he confirmed his availability on the said interview date; that he was successful at the interview stage of the recruitment and was accordingly invited to what the Defendant called a "TP interview" at the Defendant Headquarters at Rue Njo Njo, Bonapriso, Douala, on Wednesday 5^th December, 2018. That he was interviewed by Josphat Wanjagi and Olatunji Solanke, the Defendant's Senior Management, Procurement and Senior Human Resources Manager, Operations, respectively; that the interview was re-scheduled to Monday 28 January 2019 at the same location but with a different interviewing panel constitution, comprising Neil Welch-Amssa and Josphat Wanjagi, Defendant's Head of Procurement and Senior Management procurement, respectively; that there was another interview on Tuesday 12^th February, 2019 wherein the composition of the panel was Waseem Hayat and Temitope Akinsanya, Defendant's Operations and HR Director, respectively.

 

That prior to the interview, he was invited to submit and duly submitted a presentation and that on 1^st March, 2019, the Defendant requested his last 3 pay slips which the Defendant said would help him obtain all the approvals needed and on 5^th March, 2019, he supplied the pay slips by email; that the Defendant wrote him on 7^th March, 2019 requesting for more details from him regarding his children, as that would play a major factor in the allowance part of the offer; that later, he attached copies of his passport and that of his son and forwarded same to the Defendant; that the Defendant enquired whether or not he would be relocating with his son to Nigeria, and he confirmed that he would be relocating with his son who will join him in September 2019 and the defendant responded promptly seeking, in relation to the moving package, when he planned to get married and promising to come back to him on the written offer letter once it was finalized. That the Defendant also invited him to a 30-minutes telephone discussion on 18^th March, 2019, which was also followed up by an email from the Defendant requesting the notice period required by his former employers and that on 26 March 2019, he confirmed that the notice period was 2 months.

 

That upon the Defendant's confirmation on telephone on or about 21^st March, 2019 that he would be engaged, he resigned from his former employment by letter dated 25^th March, 2019, which was accepted by his former employer by letter dated 27th March 2019; that it was agreed that he would resume on 1^st April, 2019, but the Defendant did not give him any offer to that effect; that on 5^th April, 2019, the Defendant requested and he provided his address as 11, Rue de la Mosquee. Cite des Palmiers, Douala and on 10^th April, 2019, he received the offer of employment by an email; that five (5) days later, he sought clarification of the offer terms on 15^th April, 2019 and negotiations ensued and he attached the signed employment documents in an e-email to the Defendant on Wednesday 17^th April, 2019. That the email was followed by a series of email exchanges between him and the Defendant where he had to re-send the signed employment offer several times as the Defendant said it did not receive the signed documents, eventually on 24^th April, 2019, the Defendant confirmed receiving the same and on 25^th April, 2019, the Defendant confirmed safe delivery of the documents, e-mailed another offer of employment and an acceptance letter for him to sign as same was required for the processing of the STR visa; that he was surprised that the role in the offer letter was different from that on the offer of employment that he signed earlier. Accordingly, he sought clarification of this change and the Defendant stated that the reason for the change of role was for the purpose of applying for the STR visa and that they Parties had a telephone discussion on 25^th April, 2019, after which he sent the acceptance letter as requested and the Defendant confirmed receipt immediately by e-mail of the same day for the purpose of processing his STR visa.

 

That on 25^th April 2019 he enquired by email whether he would pay for the visa processing, and on 29^th of April 2019 the Defendant by e-mail informed him to pay for all expenses related to the STR visa process, as he would be reimbursed once he landed in Nigeria; that the Defendant subsequently requested copies of his educational/professional certificates, which he sent the same day and the Defendant received them and supplied him with documents he required for a work permit and that in the STR visa application, the Defendant clearly stated that:

 

"We believe Mr. Chuyeh Mbunkur experience and background check qualify him for this appointment."

 

That later, he attended the Nigerian Embassy to submit the application and confirmed to the Defendant that he intended to arrive Nigeria on 7^th May, 2019 as his visa was issued on 2^nd May, 2019; that due to visa processing delays, however, the departure date was deferred to 8^th May, 2019. However, on 6^th May, 2019, the Defendant emailed him that the Defendant had just been contacted by the Defendant background check consultants and the said consultant required his previous employer, Diageo’s address and that he immediately provided the said address as DIAGEO Guinness Cameroon, B.P 1213, Ndoghem, Bassa, Douala, Cameroon, Telephone: +237 233502200; that he received his visa on 7^th May, 2019 and requested that his flight be re-scheduled for Thursday 9^th May, 2019; that the Defendant agreed to commence the ticket processing and revert to him once the ticket had been issued; that on 13^th May, 2019, he sought a response as he required a period of 48 hours from when the ticket was issued to travel time, but the Defendant pleaded more time. That on 16^th May, 2019, the Defendant by way of email and attachment wrote that the result of background check on him gave sufficient cause for concern and was unsatisfactory, and that in view of the negative outcome of the background check, the Defendant was unable to proceed with the offer or allow him to assume his job with the Defendant and thereby revoked the offer of employment made pursuant to the Offer Letter of 10^th of April, 2019.

 

That what the letter referred to as "negative outcome to background checks" was not disclosed to him nor his representatives, despite several requests to do so as it is fundamental; that he was not given the opportunity to validate or challenge the background checks and by relying on a report before its accuracy was verified and validated, the Defendant prejudiced its own decision; that the preparation leading up to the offer of employment letter were significant and provided assurance of relocation to Nigeria. In view of the notice period required, he relied on this and resigned in preparations so as to focus his entire attention on the new position with the Defendant. That although the letter of employment required that his employment was subject to a background check, the Defendant nevertheless conducted itself in such a manner that it made him to believe that everything required for the background check had been concluded; that he was misled by the Defendant to:

 

1.     disengage from my former employment in preparation to taking the Defendant's offer;

2.     incur monumental expenses preparing to travel to Nigeria to take up the Defendant's offer;       

3.     engage in numerous mental and emotional activities in preparations for taking up the Defendant's offer.

 

That the processing and application of the alleged background check by the Defendant against him was an unfair labour practice and against standard labour and employment best practices, traditions and conventions, and therefore, wrongful, invalid and a nullity and that the refusal of the Defendant to disclose the content and or result of the alleged background check to him is inimical, unfair, and reprehensible, and therefore renders the report invalid and a nullity; that by the international labour standards established by the International Labour Organization (ILO), the Defendant has a duty to prove the reason given for terminating his appointment and that as a result of the wrongful termination of his employment by the Defendant, he was rendered unemployed for several years after losing his juicy job for the offer received from the Defendant; that his circumstances and situation was worsened by reason of the fact that he was to relocate from Cameroon and assume duty at the Defendant's office in Nigeria; that he is a complete stranger to Nigeria and thus had to make advanced and rigorous preparations towards assuming duty in Nigeria and that as a result of the unwarranted and wrongful termination of his employment, he was made to incur monumental costs and damages.

 

PARTICULARS OF DAMAGES:

 

i.          Salary and all employee benefits lost for the past 4 years (from April 2019- March 2023) at N30,000,000 (Thirty Million Naira) per annum as detailed in the total package Statement attached to the Offer of Employment dated 1^st May, 2019 as follows:

 

-           N30,000,000 multiplied by 4 years equals N120,000,000 (One Hundred and

                                    Twenty Million Naira Only)

 

i.                    All expenses incurred by the Claimant towards the preparations to assume work in Nigeria – N15,000,000 (Thirty Million Naira) detailed as follows:

 

                        (a)      Visa documentations: 350,000XAF

(b)      STR Visa Fee: 101,500 XAF

(c)      Various purchases and general expenses: 10,000,000XAF

 

iii.       Mental, emotional, and physical pains and discomfort suffered by the Claimant as a result of the termination of his employment by the Defendant – N100,000,000.00 (One Hundred Million Naira Only).

 

That he engaged solicitors to demand from the Defendant a disclosure of the alleged negative background check result alleged against him and a review of the decision of the Defendant to terminate his employment, but the Defendant failed and/or refused to accede to his requests.

 

In his reply to the defendant’s statement of defence; CW stated that his application for employment was duly acknowledged by the Defendant by its email of 3^rd November, 2018; that on the issue of notice of resignation, his position was in line with information he shared with the Defendant via email of 26^th March, 2019, wherein he stated that although he required four (4) months’ notice of resignation but he would utilize his two (2) months’ leave to offset part of it; that in accordance with the verbal agreement with Mrs. Monisola Adebayo, a member of staff of the Defendant, for a start date of 1^st April, 2019, the attached offer of employment was initially shared with him; that it would have been unlawful to have stayed employed by his then employer (Guinness Cameroun) and at the same time sign an acceptance letter for the Defendant dated 1^st April, 2019 and that the Defendant also confirmed his employment by letter dated 1^st April, 2019 and letter to the Nigerian Consulate in Cameroon of the same date and in turn, he signed the letter of Acceptance dated 1^st April, 2019. That the Defendant’s defence is a sham, vague, and without substance, and should be dismissed by the Honourable Court.

 

Under cross examination by the defendant’s counsel, CW stated that 50% of communication between the parties is via email; that there was no notice period in his letter of resignation to Guinness Cameroun; that the evidence that he fulfilled the conditions stipulated in Guinness Cameroun’s response to his resignation is not before the honourable court. CW confirmed that the signed offer letter is the only contract between him and the defendant; that it is was not written anywhere that the result of the background check will be communicated to him but that he was told that he will be informed.

 

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

 

The defendant opened its defence by calling its sole witness, Enarime Mueller, the Human Resources Manager of the defendant, wherein she adopted her witness statement on oath as evidence in this case. The defendant’s sole witness statement on oath is that the Claimant was not honest in his representations to the Defendant during the interview process particularly with respect to the notice period; that the Claimant misinformed the Defendant that his notice period for terminating his employment with his employer was two months but unknown to the Defendant the notice period is four (4) months as evinced by the letter dated 27^th March, 2019 from Guinness Cameroun S.A to the claimant; that the Defendant does not offer employment to job applicants orally or any persons whatsoever and that the employment process of the Defendant is a very formal process and all communication therefore are in writing including but not limited to offers of employment; that the resignation of the claimant from his employment dated 25^th March, 2019, preceded the conditional offer of employment of the Defendant, dated 10th April, 2019 and that the said resignation was of his own volition for reasons best known to him and had nothing to do with the Defendant; that the Claimant resuming on the 1^st of April 2019 was practically impossible as no offer had been made at the time and the Claimant had not obtained the necessary permits to work in Nigeria; that by the conditional offer of employment letter dated 10^th April, 2019, the Defendant offered the Claimant an employment as an Associate Manager-Procurement as it is expressly stipulated in the conditional offer that the employment aforesaid was subject to a "satisfactory completion of a pre-employment medical and background check" on the Claimant; that in the conditional offer that the Defendant reserves the right to revoke the Claimant's conditional offer of employment without notice in the event of a negative outcome from the background check investigation to be carried out and that the foregoing conditions of employment were freely accepted by the Claimant.

 

That the result of the background check conducted on the Claimant returned negative, unsatisfactory and gave the Defendant reasonable cause of concern and the Defendant immediately notified the Claimant of the unsatisfactory outcome of the background check and its decision not to proceed with the employment vide a letter dated 16^th May 2019 and that the Defendant acted in good faith throughout the employment negotiation period but for the unsatisfactory outcome of the background checks conducted on the Claimant; that the Defendant's notice of revocation of the conditional offer of employment was not issued maliciously or out of spite for the Claimant but was a direct consequence of the unsatisfactory result of the background check; that the provisions of the conditional offer of employment executed by the Parties governs the relationship between the Defendant and the Claimant and they are legally bound by the said document and that the Defendant acted within its rights to revoke the conditional offer of employment without prior notice to the Claimant for failure to meet the conditions thereof. That the background check conducted by the Defendant was carefully conducted based on the information provided by the Claimant; that the Defendant is not liable to pay to the Claimant four (4) years' salary or employee's benefit in the sum of N30,000,000.00 (Thirty Million Naira) per annum or any amount whatsoever nor is he entitled to be paid the sum of N15,000,000.00 (Fifteen Million Naira) or any amount whatsoever by the Defendant and also not entitled to be paid the sum of N100,000,000.00 (One Hundred Million Naira) or any amount whatsoever by the defendant.

 

That the Defendant responded to the queries of the Claimant's solicitors vide its letters dated 13^th September, 2019 and 7^th October, 2019 and reiterated to the Claimant's Solicitors that the decision of the Defendant to terminate the conditional offer of employment was due to the negative outcome of the background check carried out by the Defendant and same was in line with the conditional offer duly executed by the parties; that the Defendant is not in breach of any international standards laid down by the International Labour Organization; that the Defendant is not at liberty to release the result of the background check it conducted on the Claimant as same is private and confidential and that the Defendant is not liable to the Claimant in the sum of N350,000,000.00k (Three Hundred and Fifty Million Naira) or any sum whatsoever for the revocation of the Claimant's conditional offer of employment as the Defendant's act was lawful and in line with the express provisions of the Conditional offer of employment agreed between the parties nor liable to pay the Claimant interest on any sum whatsoever. That it is in the interest of Justice that the Honourable Court dismiss the Claimant's claims with substantial cost as same are frivolous, vexatious, a gold-digging exercise and an abuse of the process of this Honourable Court.

 

Under cross examination by the claimant’s counsel, DW stated that she joined the services of the defendant on 18^th July, 2011; that she is privy to everything that happened on the day of deliberation leading to the engagement of the claimant and that she is aware of the conversations and interactions between the defendant and the claimant. DW confirmed that exhibits EE4, EE8 and EE12 were mails trails emanating from the staff of the defendant and from the claimant to the staff of the defendant.  

 

The parties were directed to file their final written addresses. The defendant’s final written address is dated and filed 13^th January, 2026 while the claimant’s final written address is dated 27^th January, 2026 but filed 29^th January, 2026. The defendant’s Reply on point of law is dated and filed 26^th February, 2026.

 

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

 

1.     Whether the claimant has failed woefully in proving any entitlement to the reliefs sought, having regard to the facts, the relevant laws and evidence led in the suit.

 

Before delving into the above sole issue formulated, the defendant’s counsel raised a preliminary objection as to the admissibility of photocopies without proper foundation of exhibits EE3, EE6, EE7 and EE12; that such documents ought not to have been admitted in evidence without compliance with the provisions of the Evidence Act 2011; that it is within the discretion of the Honourable Court to assess the cogency, reliability, and probative value of each document before according it any weight in its final determination. He cited the case of Esika v. Medolu (1997) 2 NWLR (Pt. 485) 54 and urged the honourable court to attach no probative value to the said documents/exhibits.

 

On the legal effect of unsigned exhibit EE6 (purported claimant’s acceptance letter); counsel urged the honourable court to discountenance and expunge the said document from its record as it bears no evidential value; that a comparison of exhibit EE6 (Claimant's letter of acceptance of offer of employment dated 1^st April, 2019) and exhibit EE3 (Defendant's letter of offer of employment dated 10^th April, 2019) clearly reveals that only the latter bears the proper format and signature indicating an act of offer of employment however, the law of contract recognizes acceptance as a clear and unequivocal act of assent, often evidenced by a signature; that no valid employment relationship was formed as alleged vide exhibit EE6, as there was no signed acceptance of any offer before 10^th April 2019.

 

It is the defendant’s counsel on the sole issue that the stipulations in exhibit EE3 were not mere administrative formalities; they constituted conditions precedent, a legal concept and that it is until these conditions were fulfilled to the Defendant's satisfaction, the vesting of any right to employment remained suspended. Consequently, no enforceable obligation could arise; that it is insufficient that the checks were merely conducted, they must yield a positive result acceptable to the Defendant; that as the checks produced adverse findings, the very foundation upon which any employment relationship could be constructed collapsed ab initio. That by signing exhibit EE3, the Claimant unequivocally accepted all its terms including, and most importantly, its conditional nature and that his signature was an acknowledgment of the terms as offered, not a waiver of the condition precedent. He cited the case of Okoya v. Santilli (1994) 4 NWLR (Pt. 338) 256 and urged the honourable court to so hold.

 

Continuing, counsel submitted that the Defendant's decision to conduct background and medical checks was therefore a legitimate exercise of prudence and contractual caution and not an act of bad faith or arbitrariness, but rather the conduct of a responsible and diligent employer acting within industry standards and the express terms of the conditional offer and that to hold otherwise, would not only rewrite the parties’ agreement but would also undermine the principle of contractual freedom and the necessity of pre-employment safeguards in corporate practice. He cited the case of Sqimnga (Nig.) Ltd. v. S.A.P. (Nig.) Ltd. (2025) 2 NWLR (Pt. 1977) 423.

 

That the claimant has repeatedly alleged that critical communications, including an offer of employment, were conveyed via telephone but he has adduced no evidence, no call logs, no corroborating witnesses to substantiate the alleged telephone conversations. Consequently, these averments must be deemed abandoned, and the Claimant's credibility on this issue is significantly undermined. He cited the case of Otuedon v. Ofor (2025) 5 NWLR (Pt. 1984) 783.

 

That the conduct of the Claimant was not an innocent mistake but a clear acknowledgment of his breach of the contractual obligation owed to his former employer to give four months' mandatory notice before withdrawing his services; that this dishonesty on a material term of his previous employment further erodes the credibility of the Claimant and provides independent justification for the Defendant's subsequent decision to revoke the offer based on the negative background check; that by virtue of exhibit EE2, the claimant could not lawfully disengage until the end of the 4- month period, he remained legally bound by his employment contract during the notice period and that any attempt to resign earlier was invalid, ineffective, and contrary to the terms he agreed to.

 

That the process followed by the Defendant was transparent, predictable, and grounded entirely in the contractual framework mutually agreed by the parties and that the defendant, therefore, did not breach any international labour standards; rather, it demonstrated a clear commitment to procedural fairness and due compliance; that the background verification reports are commissioned for the exclusive and proprietary use of the Defendant, who relies on them to make an informed decision regarding eligibility and compliance. Therefore, the discretion to maintain the confidentiality of these findings forms part of the Defendant's managerial prerogative and same is integral to preserving the integrity, candour, and effectiveness of the vetting process and consistent with principles of fair process and international best practices captured in the extant International Labour Standards.

 

That the Claimant's request for damages hangs without an anchor as Damages, whether general or special, do not arise in the abstract, nor are they awarded merely because a claimant is disappointed or feels aggrieved; that the facts and circumstances of this suit do not demonstrate that the Defendant has committed a recognized wrong; that assuming but not conceding that any wrong could be said to have been done by the defendant to the claimant, the Claimant's own conduct has severed the chain of causation and renders any alleged loss self-inflicted and that the Claimant cannot rely on his own decision to resign early as a basis for damages. That the uncontroverted evidence before the Honourable Court shows that the Claimant secured alternative employment with Coca-Cola shortly after the termination and it is trite law that damages in employment matters are compensatory, not punitive. Moreover, it is clear that a Claimant who mitigates his loss by securing another job cannot validly claim damages for a loss he no longer suffers. The Claimant's demand for damages is therefore speculative and legally unsustainable.

 

Learned counsel on behalf of the claimant formulated two (2) issues for the court’s determination viz:

 

1.     Whether the Contract of Employment of the Claimant was validly terminated by the Defendant.

 

2.     Whether the Claimant is entitled to the reliefs claimed in this suit.

 

Firstly, the claimant’s counsel in response to the defendant’s preliminary objection as to the unsigned documents and photocopies tendered without proper foundation submitted that the documents tendered by the Claimant are not photocopies but electronically generated documents, and the Claimant fully complied with the mandatory provisions of the Evidence Act, 2011 governing electronically generated evidence; that having pleaded and relied on these same documents in its Statement of Defence, the Defendant cannot now approbate and reprobate by turning around questioning their admissibility as the law does not permit a party to blow hot and cold in the same breath and that the Defendant, having full custody and control of the documents, cannot rely on its own failure to produce the originals to defeat the Claimant’s case. He cited the case of G.T.B. Plc v. Innoson (Nig.) Ltd. (2025) 15 NWLR (Pt. 2008) 349 SC.

 

That the absence of a signature on the Claimant’s letter of acceptance does not vitiate the contract of employment under settled principles of contract law; that while it is correct that a signature may serve as evidence of acceptance, the law is equally settled that acceptance of an offer need not be in writing nor evidenced by signature alone, as it may be express or implied and inferred from conduct. That the Defendant cannot, in equity and good conscience, rely on the absence of a signature while simultaneously benefiting from and acting upon the Claimant’s acceptance. The law frowns at such inconsistency. He cited the case of Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723 SC.

 

On issue one (1); the claimant’s counsel submitted that the outcome of a background check was a post-acceptance formality, which did not negate the fact that an offer and acceptance had already crystallized into a contractual relationship. At best, it imposed a condition subsequent, not a condition precedent, and the Defendant cannot rely on its own “background check” to deny the validity of an agreement it already acted upon; that the employment relationship between the parties crystallized into a binding contract and any subsequent termination by the Defendant amounts to a wrongful termination of employment and that the Defendant acted in bad faith and dishonestly towards the Claimant by issuing two contradictory Letters of Employment to the Claimant, which the Claimant innocently acted upon. Therefore, the honourable court should not allow the Defendant to benefit from its own wrong and dishonesty to deny the Claimant of his benefits under the contract of employment; that the Defendant cannot act on a contract when convenient and later deny it when inconvenient. He cited the case of Salisu v. Mobolaji (2016) 15 NWLR (Pt. 1535) 242 SC.

 

That the Defendant’s entire case rests on a phantom “background check” which was never pleaded with particulars, never disclosed to the Claimant, never tendered in evidence and never linked to any misconduct; that the law is settled that facts not proved by evidence go to no issue; that the Defendant having failed to prove the reason it gave for revoking the Claimant’s employment, and having denied the Claimant any fair hearing in the process, the Honourable Court is urged to hold that the termination was wrongful and to grant the reliefs sought by the Claimant. He cited the case of Skye Bank Plc v Adegun (2024) 15 NWLR (Pt. 1960) 1 SC.

 

On the application of the International Best Practices; counsel submitted that by virtue of Section 254C (1) (f) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 7(6) of the National Industrial Court Act 2006, the court is empowered to apply good or international best practices in labour or industrial relations. which gives the honourable court a broad discretion to look beyond domestic instruments and apply internationally recognized standards of fair labour practice in determining employment disputes such as the present one. That the Defendant’s failure to disclose the contents of the alleged background check to the Claimant and denying him an opportunity to respond to or clarify any adverse information is contrary to the International labour standards and international best practices in labour which the court has a duty to apply as empowered in the provisions Article 4 and 7 of ILO Convention No. 158 (Termination of Employment Convention, 1982).

 

That the evidence of the Defendants’ lone witness relating to the negotiations and discussions leading to the contract of employment between the Claimant and the Defendant in this case constitutes hearsay, being the information admitted by the said witness to have been received from the staff of the Defendant who interacted with the Claimant, and therefore inadmissible in evidence and should be discountenanced accordingly. He referred the honourable court to Section 37 of the Evidence Act 2011 and cited the case of Oyetola v. I.N.E.C. (2023) 11 NWLR (Pt. 1894) 125.

 

On issue two (2); the claimant’s counsel submitted that Claimant undertook extensive steps in reliance on the Defendant’s representations; he resigned his employment, processed his STR visa application, suspended competing opportunities, and made relocation plans with his family, including budgeting for flights and arrangements to move permanently to Nigeria; that these expenses were the direct and foreseeable consequence of the Defendant’s actions, and the Defendant must bear responsibility for losses it induced the Claimant to incur. He urged the Honourable Court to award damages encompassing the Claimant’s full remuneration package as stipulated in the offer of employment for the period he was out of employment as pleaded and proved in the Statement of Facts and evidence before the honourable court. He cited the case of Oceanic Bank Intl (Nig.) Ltd. v. G. Chitex Ind. (2000) 6 NWLR (Pt. 661) 464 CA.

 

 

On reply on point of law; the defendant’s counsel submitted that the Claimant's reliance on wrongful termination principles, fair hearing, and international best practices is misconceived, as those protections presuppose a subsisting employer-employee relationship and that Section 254C(1)(f) of the Constitution and Section 7(6) of the National Industrial Court Act 2006 do not empower the honourable court to override clear contractual terms or create rights where no employment relationship exists.

 

That that defendant, being a juristic person need not call every officer involved in a transaction, provided the witness is competent, familiar with the facts through the company's records, and duly authorized; that the Defendant's sole witness testified in her official capacity based on ordinary business records, and her evidence is therefore admissible and not hearsay. He cited the case of Standard Trust Bank Ltd v. Interdrill Nig. Ltd & Anor (2006) LPELR-9848(CA) and urged the honourable court to so hold.

 

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

 

Whether the claimant has led sufficient evidence entitling him to succeed in his claims 

Before I proceed further, I will address the issue of admissibility of (exhibits EE3, EE6, EE7, EE13)   tendered by the claimant, which objection was raised by the defendant.  That the claimant tendered the documents without laying foundation as they are photocopies which is contrary to Section 83 of the Evidence Act 2011 and the provision that the original of a document produced by its maker, if relevant to the facts in issue,is admissible in evidence. More so the court is not allowed to rely on evidence that is not admissible under the law citing Owonyin v Omotosho (supra). The response of the claimant is that the documents are not photocopies but electronically generated documents and that the claimant complied fully with the mandatory provisions of the Evidence Act 2011. Exhibit EE3 is the offer of employment and is the letter sent to the claimant, while exhibit EE6, EE7 and EE13 are all letters received by the claimant and was not received as email.  The defendant has not denied the fact that they sent exhibits EE7 and EE13 to the claimant while exhibit EE6 is acceptance of offer letter by the claimant. This court is a special court and not given to technicality, authorities abound where courts have been enjoined to move away from technicality to substantial justice. See Akingbola & Anor v Intercontinental Bank Plc & Ors (2014) LPELR-22417 (CA), Kente v Ishaku & Ors (2016) LPELR-407889CA). Section 12 of National Industrial Court Act 2006 provides 

Subject to this Act and any rules made thereunder, the Court

A. May regulate its procedure and proceedings as it thinks fit: and

B.  shall be bound by the Evidence Act but may depart from it in the interest of justice.

The major thing is that the while this court is to apply the Evidence Act, it can depart from the Evidence Act in the interest of justice. The documents are therefore admissible. The second objection is that the claimant’s acceptance of the offer of employment dated 1^st of April 2019 is not signed (exhibit EE6) and prayed the court to discountenance same. That since the document purporting to accept the contract of employment is not signed, it means that no valid acceptance existed.   Exhibit EE6 is the letter of acceptance by the claimant and is not signed. The law is that an unsigned document is worthless. See Omega bank (Nig) Ltd v O.B.C. Ltd (2005) LPELR – 2636 (SC). Two letters of employment were sent to the claimant which are exhibit EE5 of 1^st May 2019, exhibit EE13 sent on the 16^th of May 2019 followed by email trail for the procurement of STR visa to Nigeria from the defendant to resume.  The letter of acceptance (exhibit EE6) the defendant is relying on is based on the second letter of offer issued to the claimant for the purpose of obtaining STR visa to Nigeria. We cannot rely on technicality at this stage as the defendant continued with the claimant, issued two letters and applied for his STR visa, approved purchase of ticket for the claimant and cannot at this stage bring up the issue that the employment letter was not signed means the employment was not accepted.     

Now to the merit of the case, the claimant’s case is that he was offered employment by the defendant and he accepted same and resigned his employment from his former place of work by exhibit EE1. The issue for determination is whether on the entire pleadings and evidence led in this case, the claimant is entitled to the reliefs claimed.  A summary of the facts herein will reveal that the claimant was invited for interview by the defendant and was eventually given an offer letter which he accepted and another letter of employment was issued to him which the defendant describes as strictly for the purposes of STR visa.  His offer letter was later revoked and he has come to court to claim for damages.  The defendant hinged its response on the fact that he did not sign the letter of acceptance and in fuller reasoning that the background check was not favourable and the offer was revoked.  Meanwhile, he had resigned from his previous employment to take up the new employment. The defendant’s response to this is that while an offer of   employment letter was given to the claimant, he did not accept same so the contract was not executed. The claimant’s claim is for salary and damages, as no reason was given for the termination and for the defendant to release to the claimant the content of the alleged background check it conducted on the claimant. In proof of his case, the claimant tendered the following documents Resignation letter (exhibit EE 1), Your resignation (exhibit EE 2), Offer of employment (exhibit EE 3),  Email ( exhibit  EE4), Offer of employment (exhibit EE5), Acceptance of offer of employment (exhibit EE6), Application for STR (exhibit EE7),  Email trails (exhibits EE8, EE9, EE9, EE10, EE11,EE12,) Offer of employment (exhibit EE13), Solicitor’s letter (exhibit EE14), Letter from defendant (exhibit EE15),  The defendant tendered two (2) letters (exhibits EE19 and EE 20).

The issue here is whether there was an offer of employment to the claimant and an acceptance by him.  The defendant’s postulation is that negotiation started on the 19^th of April 2019 wherein the claimant sent emails to the defendant with a positive response. The claimant averred in paragraph 18 of the statement of facts thus:

On 10^th April, 2019, the Claimant finally received the formal offer of employment by an email. The said offer of employment is marked "Exhibit C."

Exhibit EE3 is the letter of offer of employment dated 10^th April 2019 while the defendant agrees that it is a letter of offer of employment, it states cannot be taken as contract of employment as all the features of a contract of employment are not complete.  In the pleadings of the defendant, it is its contention that the resignation of the claimant from his previous employment preceded the defendant’s conditional offer dated 10^th April 2019, moreover there is no acceptance by the claimant.  The argument of the defendant is that there is no acceptance which means the contract of employment is not consummated. Mamman v Independent Corrupt Practices and Other Related Offences Commission (2021) LPELR -56683 (CA) held that a contract of employment is consummated by an offer from the employer and an acceptance from the employee. By exhibit EE5, the claimant was first offered employment on the 1^st of April 2019 for the position of Planning & Reporting Manager (West African Markets) at British American tobacco marketing Nigeria limited.  Having offered this letter of employment, the defendant in paragraph 7 of the statement of defence denied same.

Paragraph 7: Contrary to the averment in Paragraph 16 of the Statement of Facts, the Defendant states that there was no agreement whatsoever for the Claimant to resume on the 1^st of April, 2019. The Defendant further states that resuming on the first of April was practically impossible as no offer had been made at the time and the Claimant had not obtained the necessary permits to work in Nigeria.

If the defendant contends that there was no offer on the 1st of April 2019, what then is exhibit EE5?  Then on the 10^th of April 2019 another offer letter was sent as exhibit EE3 for the position of Associate Manager procurement and reads

We refer to the interviews you recently attended with our organization and are pleased to offer you employment with British American Tobacco Marketing (Nigeria)

           

And included the following

 

In addition, this offer is subject to a satisfactory completion of pre- employment medical and background check.

 

In the second offer of employment letter the claimant accepted same thus

 

I Chieyeh Mbunkur Eithel Effiong hereby confirm acceptance of this conditional offer of employment with British American Tobacco marketing Nigeria limited signed and dated on the 15th of April 2019

In Bikpo v NDLEA & Ors (2021) LPELR -562509 CA) on features of a contract of service, the court of appeal held on feature of a contract of service as an obligation by the employer to employ a man and to pay him an agreed or proper wage.   I hold that exhibit EE3 is a valid offer of employment issued to the claimant by the defendant. The claimant accepted the offer which in turn means that there was a valid contract between the claimant and the defendant.

The court in Nelco Ltd v Onifade & Anor (2022) LPELR -58118 (CA) defined contract of service /contract of employment as a contract or an agreement between parties. Contracts of employment like other contracts, their creation and termination are both subject to the general principles governing the law of contract. I must state at this stage that every contract of employment contains terms and condition that will regulate the employment relationship such as terms on determination and other conditions.   Now on the claimant’s resignation from his previous employment the defendant in paragraph 6 of the statement of defense averred

Further to the foregoing the Defendant states that the resignation of the Claimant from his employment dated 25^th March, 2019, preceded the conditional offer of employment of the Defendant, dated 10^th April, 2019 and that the said resignation was of his own volition for reasons best known to him and had nothing to do with the Defendant.

While the defendant’s argument centers on the claimant’s resignation that it was done on his volition, the defendant has not told the court if the claimant is entitled to keep two jobs. Attached to exhibit EE3 is the total package for the claimant. What this means is that parties had agreed on the claimant’s salary and other benefits and even relocation benefits which was in place before the letter of offer of employment was issued to the claimant. The defendant denied telephone conversation with the claimant, then by what means was the claimant interviewed and given a total package which document the defendant has not denied as emanating from them.

To the defendant, there is no reason for the claimant to have tendered his resignation by exhibit EE1 on the 25^th March 2019 and it was agreed that the claimant would resume on 1^st April 2019 but the defendant did not give the claimant any offer to that effect and only received same on the 10^th of April 2019. It reiterates the fact that the letter of employment is the one of 10^th April 2019 duly accepted and not the one of 1^st April 2019.The defendant in paragraph 6 of the statement of defense responded that the resignation of the claimant from his former place of employment preceded the conditional offer of employment of the defendant dated 10^th April 2019.  The defendant’s second contention with the claimant’s employment is that the claimant’s resignation was not based on the offer of employment to the claimant.  The claimant, however resigned by exhibit EE1 and part is reproduced below

I have spent the last eight and half years working here and have grown tremendously in all aspects of my life, however I’d like to move on to other things.

 I presently have 50 leave days and seek that this be deducted from my notice period.

The former employer GUINNESS CAMEROUN S.A by exhibit EE2 acknowledged receipt of his resignation letter prompting him to complete the legal requirements concerning the four (4) months prior notice period from 25^th March to 25^th July 2019.

Additional that he is to contact the HR business partner for details of the following entitlements

A-   13^th month pay prorated to time spent in the company during the year

B-   Outstanding leave 60 days

C-    Certificate of service

The claimant’s 60 days leave was confirmed by the former employer Guinness Cameroun. The defendant’s clause in the letter of employment provided that the offer is subject to satisfactory completion of pre- employment and background check.  The defendant stated that the outcome of the background check is not being favorable to the claimant. In paragraph 4.02 of the defendant’s final written address cited Orient Bank (Nig ) Plc Vs Bilante International Limited (supra) alluding to the ingredients of a valid contract and that an offer that requires the acceptance to be expressed or communicated in a certain way can generally be accepted only in that way and that the claimant did not fully disclose that his notice period is four months as against the two months presented to the defendant.   The defendant concluded that it is enough ground to revoke the offer of employment of the claimant and moreover the offer was never accepted in writing to constitute a binding contract. The court had earlier held that the claimant accepted the offer of employment as exhibit EE3. The defendant pleaded that the resignation was not based on any document before the court. The position of the law as regards notice from employment is that resignation from employment is giving the required length of notice or payment in lieu of notice. To the defendant, first there was no job offer before the claimant resigned.  If the claimant did not resign from the former employer what was the basis of exhibit EE4 where Ifeoma Okoye sent an email on the 25^th of April 2019 and wrote

As discussed, please find attached the acceptance letter Eithel needs to sign off. This is required for the processing of his STR visa.

 Will forward all the documentation to him once this is signed off and sent back.

In an employment situation and for relocation of an employee, processing of visa is the last step before commencement of new job. For the defendant to say that the claimant resigned without any cause is not true as there was follow up by exhibit EE4.  But for the offer of employment which was accepted, the claimant would not have resigned from his previous employment. Now on why the claimant resigned on the 25^th of March without a letter can no longer form the basis for the defendant’s defence on phantom resignation as exhibit EE7 (application for STR visa) is on point and the basis for the resignation. I am inclined to believe the claimant that what transpired through the telephone with the defendant’s HR department was conclusion of his employment with the relocation preparation as the defendant cannot apply for STR (exhibit EE7) for the claimant if parties had not agreed on the terms of the contract. Below is part of the application for STR VISA (exhibit EE7 dated 1^st of April.

1^st April 2019

Consulate General of Nigeria

Cameroun

 

Dear sir,

 

APPLICATION FOR STR VISA – MR EITHEL EFFINAG CHUYEH MBUNKUR A

 

We hereby apply for STR visa for the above-named Mr. Eithel Effiang Chuyeh MBUNKUR who is the planning & reporting manager (West African Markets) for British American tobacco marketing Nigeria Limited. He is Cameroonian

 

We believe Mr. Chuyeh Mbunkur’s experience and background qualify him for this appointment.

If the claimant resigned on the 23^rd of March 2019 without a formal letter, why did the defendant start the process and application of his STR visa, secondly, without an employment letter which is dated 10^th April 2019. For all of this the claimant is entitled to recompense in the nature of damages.

The second issue as to the reason for the revocation of the letter of employment is that the claimant did not disclose all there is to know about him, his notice period same was inserted as a clause. In fact, there is no disclosure on the findings of the background check.   The clause on the background check to be conducted by the defendant and ended with:

 Your employment is contingent upon a positive outcome of a background check on your   credentials. We reserve the right to terminate your employment without notice in the event of a negative outcome from the background check investigation. We will therefore contact you as soon as the background check process has been concluded.

In paragraph 10 of the statement of defense, the defendant avers that the result of the background check conducted on the claimant returned negative and unsatisfactory. Whilst the defendant has not released the findings of the background check to the claimant, it has consistently referred to same as unfavorable. The claimant resigned giving two (2) months’ notice to its former employer while stating it has 60 days leave confirmed by the employee. While it is necessary to disclose to the defendant that his leave period forms part of the notice period, the defendant should have disclosed their findings. Exhibit EE 3 is the response to the notice period and Guinness Cameroun S.A disclosed that the claimant is entitled to the following entitlements ‘’ outstanding leave 60 days’’ The defendant did not disclose if same can be converted but his earlier assertion that he had two months’ notice period and then 60days leave which is also two months makes the total (4) months. The defendant did not tell the court if in its finding, such days can be converted, alternatively, the claimant can also pay salary in lieu to the Guiness Cameroon S.A for the notice period, this notice period cannot affect his employment as there is remedy where the employee can in effect pay for the said period.  In Chukwumah v Shell Petroleum (1993) LPELR – 8649 (SC) on meaning of in lieu of notice defines the phrase as instead of, in place of, in substitution of ‘’ Thus when the condition of termination of the contract of service is the giving of two months’ notice or the payment of two months salary in lieu of notice, it can only mean the payment of two months’ salary instead of, in place in substitution of the giving of two months’ notice.  I find and hold that the notice period can also be paid by either of the party that has not given the required notice.  ordinarily and consistent with the common law principle, the court will not impose an employee on an employer. Where parties to a contract mutually agree that the condition for termination is the giving of notice of the salary or other perquisites, covering the period of notice in accordance with the contract of service. See Niger Insurance Co v Abed Brothers Ltd (1976) LLJR-SC, what is more, what the defendant has referred to as giving cause for concern is exactly what it did when it offered two letters of employment to the claimant, one for STR visa and the other for employment.  Under cross examination. In exhibit EE4 a mail from Ifeoma Okoye dated 25^th April 2019, DW confirmed that it is for the purpose of his STR visa, one for the position of Associate manager procurement and the other as planning & reporting manager west Africa markets. The defendant must not lose touch of the fact that they in turn did what they complained against the claimant. Under cross examination, CW testified that he queried the letter sent on 25^th April 2019 and the defendant responded that it was for the purpose of obtaining visa.  This then settles the issue that it was a proper contract of employment in that after the offer he accepted. The defendants did not controvert this.  In Rueben v State (2018) LPELR --- 2018 the law is that any evidence that is unchallenged or uncontroverted the trial court has a duty to act on it where credible. In addition, where evidence by a party to any proceedings as in this case was not challenged or controverted by the opposite party who had the opportunity to do so it is always open to the court to accept same. I am satisfied that with the above there is a valid contract between the parties. I say so as the other conditions stated in exhibit EE3 contains acceptance in writing, and his salary and entitlements attached to the offer of employment. It is my view that exhibit EE7 and the email trail on the 1^st of April 2019 is a pointer that the employment was valid.

It is my view and so hold that in the face of the above holding by the court of appeal on what is employment, the evidence of the defendant that the background check was unfavorable in the contract cannot be of any assistance to the defendant. The defendant’s counsel contended that claimant did not need to resign from the former employer. The claimant averred that in paragraph 20 of the amended statement of facts, based on the letter issued to him by the defendant, he immediately resigned his appointment with his former employer, Guinness Cameroun on the 25^th day of March 2020 to enable him to prepare for resumption to his new position at the defendant’s company with effect from 1^st May, 2019. The defendant will on one hand state that the claimant did not resign based on the offer of any employment and on the other hand continue with preparation for the claimant to resume as staff. The law is settled that a letter of resignation becomes effective when the employee has given notice of his resignation to his employer and the letter is received by the employer.  Exhibit EE1 (Letter of resignation) dated 25^th March 2019 and received same day means he had finally left the former employer Guinness Cameroun. See Benson v Onitiri (1960) SCNLR page 177 at pages 189-190. In Engr Olarewaju Edun v Afolabi Afuape & Ors the court considered on when resignation takes effect and held thus the question is without exhibit C can the court say the 1^st respondent was still an employee when labour law say at the point of resignation.  When is an employee deemed to have resigned? See Ibrahim v Abdallah & Ors (2019) LPELR -48984 (SC)

From the above authorities, it is clear that the claimant’s resignation from Guinness Cameroun became effective from the 25^th of March 2019 and based on the employment offered to him by the defendant, no person is entitled to keep two jobs at the same time.

The 1^st leg of the claimant’s claim is for a declaration that the termination of employment by the defendant based on the alleged background check is wrongful.  An employee is at liberty to conduct background checks but must be done within the stipulated system. The defendant has not referred to what it terms unfavorable.  Relief 1 fails.

The main relief here is that the claimant is entitled to compensation in the form of damages. While the claimant has not told the court how he came about the sum of N350, 000, 000 the claimant is however entitled to damages having resigned from his place of employment.

 For the avoidance of doubt, I make the following orders:

1.     The defendant is to pay to the claimant the sum of N10,000,000 as damages

2.     I award cost of N500,000 to be paid by the defendant to the claimant.

3.     These sums are to be paid within 30 days of this judgement failing which it attract interest of 15% per annum until the sums are liquidated

Judgment is entered accordingly.

 

 

HON. JUSTICE A.N. UBAKA

JUDGE